<PAGE> 1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
_______________________
Form 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported) November 8, 1994
NORWEST FINANCIAL, INC.
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(Exact name of registrant as specified in its charter)
Iowa 2-80466 42-1186565
- ---------------------------- ---------------- -------------------
(State or other jurisdiction (Commission File (I.R.S. Employer
of incorporation) Number) Identification No.)
206 Eighth Street, Des Moines, Iowa 50309
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(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code (515) 243-2131
--------------
<PAGE> 2
Item 5. Other Events.
In connection with the commencement of its medium-term note program,
Norwest Financial, Inc. (the "Company") entered into a Distribution Agreement
(the "Distribution Agreement") dated as of November 8, 1994, with Merrill Lynch
& Co., Merrill Lynch, Pierce, Fenner & Smith Incorporated; Bear, Stearns & Co.
Inc.; Donaldson, Lufkin & Jenrette Securities Corporation; PaineWebber
Incorporated; and Salomon Brothers Inc, providing for the sale from time to
time of up to $500,000,000 aggregate principal amount of its Medium-Term Notes,
Series B (the "Notes") through one or more of such firms as agents. The Notes
that constitute senior indebtedness of the Company will be issued under an
indenture dated as of November 1, 1991, between the Company and The First
National Bank of Chicago, as Trustee. The Notes that constitute senior
subordinated indebtedness of the Company will be issued under an Indenture
dated as of May 1, 1986, as supplemented by a First Supplemental Indenture
dated as of February 15, 1991, each between the Company and Harris Trust and
Savings Bank, as Trustee. Forms of the Company's Medium-Term Notes, Series B
relating to senior indebtedness and senior subordinated indebtedness are filed
as Exhibits 4.1 and 4.2, respectively, and a form of the Distribution
Agreement is filed as Exhibit 1.
Item 7. Financial Statements, Pro Forma Financial Information and Exhibits.
(c) Exhibits
<TABLE>
<CAPTION>
Exhibit
Number Description
<S> <C>
1 Form of Distribution Agreement
dated as of November 8, 1994, among the
Company, Merrill Lynch & Co., Merrill
Lynch, Pierce, Fenner & Smith Incorporated;
Bear, Stearns & Co. Inc.; Donaldson,
Lufkin & Jenrette Securities Corporation;
PaineWebber Incorporated; and Salomon
Brothers Inc.
4.1 Form of Senior Medium-Term Note, Series B.
4.2 Form of Senior Subordinated Medium-Term
Note, Series B.
8 The opinion of Orrick, Herrington &
Sutcliffe as to certain tax matters.
23.1 The consent of Orrick, Herrington &
Sutcliffe is contained in its legal
opinion filed as Exhibit 8.
23.2 The consent of Steve R. Wagner, Esq. to
the reference to him under the heading
"Legal Opinions" in the Prospectus
Supplement dated November 8, 1994,
relating to the Notes.
</TABLE>
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<PAGE> 3
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
NORWEST FINANCIAL, INC.
By: /s/ Dennis E. Young
----------------------------
Date: November 8, 1994 Dennis E. Young
Senior Vice President and Treasurer
<PAGE> 4
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit
Number Description
<S> <C>
1 Form of Distribution Agreement
dated as of November 8, 1994, among the
Company, Merrill Lynch & Co., Merrill
Lynch, Pierce, Fenner & Smith Incorporated;
Bear, Stearns & Co. Inc.; Donaldson,
Lufkin & Jenrette Securities Corporation;
PaineWebber Incorporated; and Salomon
Brothers Inc.
4.1 Form of Senior Medium-Term Note, Series B.
4.2 Form of Senior Subordinated Medium-Term
Note, Series B.
8 The opinion of Orrick, Herrington &
Sutcliffe as to certain tax matters.
23.1 The consent of Orrick, Herrington &
Sutcliffe is contained in its legal
opinion filed as Exhibit 8.
23.2 The consent of Steve R. Wagner, Esq. to
the reference to him under the heading
"Legal Opinions" in the Prospectus
Supplement dated November 8, 1994,
relating to the Notes.
</TABLE>
<PAGE> 1
NORWEST FINANCIAL, INC.
Medium-Term Notes Due From
9 Months to 30 Years from Date of Issue
DISTRIBUTION AGREEMENT
Dated as of November 8, 1994
MERRILL LYNCH & CO. PaineWebber Incorporated
Merrill Lynch, Pierce, Fenner & Smith 1285 Avenue of the Americas
Incorporated New York, New York 10019
Merrill Lynch World Headquarters
World Financial Center and
North Tower, 23rd Floor
New York, New York 10281-1323 Salomon Brothers Inc
7 World Trade Center
Bear, Stearns & Co. Inc. New York, New York 10048
245 Park Avenue
New York, New York 10167
Donaldson, Lufkin & Jenrette
Securities Corporation
140 Broadway
New York, New York 10005
Dear Sirs:
Norwest Financial, Inc., an Iowa corporation (the "Company"), confirms its
agreement with Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner & Smith
Incorporated, Bear, Stearns & Co. Inc., Donaldson, Lufkin & Jenrette Securities
Corporation, PaineWebber Incorporation and Salomon Brothers Inc (individually,
an "Agent", and collectively, the "Agents") with respect to the issue and sale
by the Company of its Medium-Term Notes described herein (the "Notes"). The
Notes which constitute senior indebtedness of the Company are to be issued
pursuant to an indenture dated as of November 1, 1991 between the Company and
The First National Bank of Chicago, as trustee (the "Senior Trustee"), (said
indenture being hereinafter called the "Senior Indenture"). The Notes which
constitute senior subordinated indebtedness of the Company are to be issued
pursuant to an indenture dated as of May 1, 1986 between the Company and Harris
Trust and Savings Bank, as trustee (the "Senior Subordinated Trustee"), as
amended by a first supplemental indenture dated as of February 15, 1991 between
the Company and the Senior Subordinated Trustee (said indenture as amended by
said first supplemental indenture being hereinafter called the "Senior
Subordinated Indenture"). As of the date hereof, the Company has authorized
the issuance and sale of up to U.S. $500,000,000 aggregate principal amount
(or its equivalent, based upon the currencies or units of two or more
currencies as the Company shall designate at the time of issuance) of Notes
through the Agents pursuant to the terms of this Agreement. It is understood,
however, that the Company may from time to time authorize the issuance of
additional Notes and that such additional Notes may be sold through or to the
Agents pursuant to the terms of this Agreement, all as though the issuance of
such Notes were authorized as of the date hereof.
<PAGE> 2
This Agreement provides both for the sale of Notes by the Company directly
to purchasers, in which case an Agent will act as an agent of the Company in
soliciting Note purchases, and (as may from time to time be agreed to by the
Company and an Agent) to an Agent as principal for resale to purchasers.
The Company has filed with the Securities and Exchange Commission (the
"SEC") a registration statement on Form S-3 (No. 33-52157) for the registration
of debt securities, including the Notes, under the Securities Act of 1933 (the
"1933 Act") and the offering thereof from time to time in accordance with Rule
415 of the rules and regulations of the SEC under the 1933 Act (the "1933 Act
Regulations"). Such registration statement has been declared effective by the
SEC and the Senior Indenture and the Senior Subordinated Indenture
(individually, an "Indenture", and collectively, the "Indentures") each has
been qualified under the Trust Indenture Act of 1939 (the "1939 Act"). Such
registration statement (and any further registration statements which may be
filed by the Company for the purpose of registering additional Notes and in
connection with which this Agreement is included as an exhibit) and the
prospectus constituting a part thereof, and any prospectus supplements relating
to the Notes, including all documents incorporated therein by reference, as from
time to time amended or supplemented by the filing of documents pursuant to the
Securities Exchange Act of 1934 (the "1934 Act") or the 1933 Act or otherwise,
are referred to herein as the "Registration Statement" and the "Prospectus",
respectively, except that if any revised prospectus shall be provided to the
Agents by the Company for use in connection with the offering of the notes which
is not required to be filed by the Company pursuant to Rule 424(b) of the 1933
Act Regulations, the term "Prospectus" shall refer to such revised prospectus
from and after the time it is first provided to the Agents for such use.
SECTION 1. Appointment as Agents.
(a) Appointment of Agents. Subject to the terms and conditions stated
herein and subject to the reservation by the Company of the right to sell Notes
through additional agents or to additional agents for resale, or to sell Notes
directly on its own behalf, the Company hereby appoints the Agents as the
agents for the purpose of soliciting purchases of the Notes from the Company by
others and agrees that whenever the Company determines to sell Notes directly
to an Agent as principal for resale to others, it will enter into a Terms
Agreement (hereafter defined) relating to such sale in accordance with the
provisions of Section 3(b) hereof. The Agents are not authorized to appoint
sub-agents or to engage the services of any other broker or dealer in connection
with the offer or sale of the Notes.
(b) Best Efforts Solicitations; Right to Reject Offers. Upon receipt by
it of instructions from the Company, an Agent will use its best efforts to
solicit purchases of such principal amount of the Notes as the Company and such
Agent shall agree upon from time to time during the term of this Agreement, it
being understood that the Company shall not approve the solicitation of
purchases of Notes in excess of the amount which shall be authorized by the
Company from time to time. Each Agent will communicate to the Company, orally
or in writing, each offer received by it to purchase Notes, other than those
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offers rejected by such Agent. Each Agent shall have the right, in its
discretion reasonably exercised, to reject any offer to purchase Notes received
by it, as a whole or in part, and any such rejection shall not be deemed a
breach of such Agent's agreement contained herein. The Company may accept or
reject any proposed purchase of the Notes, in whole or in part.
(c) Solicitations as Agent; Purchases as Principal. In soliciting
purchases of the Notes on behalf of the Company, each Agent shall act solely as
agent for the Company and not as principal. Each Agent shall make reasonable
efforts to assist the Company in obtaining performance by each purchaser whose
offer to purchase Notes has been solicited by such Agent and accepted by the
Company. The Agents shall not have any liability to the Company in the event
any such purchase is not consummated for any reason. The Agents shall not have
any obligation to purchase Notes from the Company as principal, but each Agent
may agree from time to time to purchase Notes as principal. Any such purchase
of Notes by an Agent as principal shall be made pursuant to a Terms Agreement
in accordance with Section 3(b) hereof.
(d) Reliance. The Company and each Agent agree that any Notes the
placement of which such Agent arranges shall be placed by such Agent, and any
Notes purchased by such Agent shall be purchased, in reliance on the
representations, warranties, covenants and agreements of the Company contained
herein and on the terms and conditions and in the manner provided herein.
SECTION 2. Representations and Warranties
(a) The Company represents and warrants to each of the Agents as of the date
hereof, as of the date of each acceptance by the Company of an offer for the
purchase of Notes (whether through an Agent as agent or to an Agent as
principal), as of the date of each delivery of Notes (whether through an Agent
as agent or to an Agent as principal) (the date of each such delivery to an
Agent as principal being hereafter referred to as a "Settlement Date"), and as
of the times referred to in Section 7(b) hereof as follows:
(i) Due Incorporation and Qualification. The Company has been duly
incorporated and is validly existing as a corporation in good standing under
the laws of the state of its incorporation with corporate power and
authority to own, lease and operate its properties and to conduct its
business as described in the Prospectus; and the Company is duly qualified
as a foreign corporation to transact business and is in good standing in
each jurisdiction in which such qualification is required by virtue of the
direct making of loans and the direct purchase of installment sale
contracts, except where the failure to so qualify would not have a material
adverse effect on the condition, financial or otherwise, or the earnings,
business affairs or business prospects of the Company and its subsidiaries
considered as one enterprise.
(ii) Subsidiaries. Each subsidiary of the Company which is a
significant subsidiary (each a "Significant Subsidiary") as defined in Rule
405 of Regulation C of the 1933 Act Regulations has been duly organized and
is validly existing as a corporation or business trust in good standing
under the laws of the jurisdiction of its organization, has corporate or
other power and authority to own, lease and operate its properties and
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<PAGE> 4
conduct its business as described in the Prospectus and is duly qualified
as a foreign corporation to transact business and is in good standing in
each jurisdiction in which such qualification is required, whether by
reason of the ownership or leasing of property or the conduct of business,
except where the failure to so qualify would not have a material adverse
effect on the condition, financial or otherwise, or the earnings, business
affairs or business prospects of the Company and its subsidiaries
considered as one enterprise; and all of the issued and outstanding capital
stock of each such Significant Subsidiary has been duly authorized and
validly issued, is fully paid and non-assessable and, except for directors'
qualifying shares, is owned by the Company, directly or through
subsidiaries, free and clear of any security interest, mortgage, pledge,
lien, encumbrance, claim or equity.
(iii) Registration Statement and Prospectus. At the time the
Registration Statement became effective, the Registration Statement
complied, and as of the applicable Representation Date will comply, in all
material respects with the requirements of the 1933 Act and the 1933 Act
Regulations and the 1939 Act and the rules and regulations of the SEC
promulgated thereunder. The Registration Statement, at the time it became
effective, did not, and at each time thereafter at which any amendment to
the Registration Statement becomes effective and any Annual Report on Form
10-K is filed by the Company with the SEC and as of each representation
date referred to in Section 2(a) hereof, will not, contain an untrue
statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not
misleading. The Prospectus, as of the date hereof does not, and as of each
representation date referred to in Section 2(a) hereof will not, contain an
untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided,
however, that the representations and warranties in this subsection shall
not apply to statements in or omissions from the Registration Statement or
Prospectus made in reliance upon and in conformity with information
furnished to the Company in writing by either of the Agents expressly for
use in the Registration Statement or Prospectus or to that part of the
Registration Statement which constitutes either of the Trustee's Statement
of Eligibility and Qualification under the 1939 Act (Form T-1).
(iv) Incorporated Documents. The documents incorporated by
reference in the Prospectus, at the time they were or hereafter are filed
with the SEC, complied or when so filed will comply, as the case may be, in
all material respects with the requirements of the 1934 Act and the rules
and regulations promulgated thereunder (the "1934 Act Regulations"), and,
when read together and with the other information in the Prospectus, did
not and will not contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary in order
to make the statements therein, in the light of the circumstances under
which they were or are made, not misleading.
(v) Accountants. The accountants who certified the financial
statements included or incorporated by reference in the Prospectus are
independent public accountants within the meaning of the 1933 Act and the
1933 Act Regulations.
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<PAGE> 5
(vi) Financial Statements. The financial statements and any
supporting schedules of the Company and its consolidated subsidiaries
included or incorporated by reference in the Registration Statement and the
Prospectus present fairly the consolidated financial position of the Company
and its consolidated subsidiaries as of the dates indicated and the
consolidated results of their operations for the periods specified; and,
except as stated therein, said financial statements have been prepared in
conformity with generally accepted accounting principals in the United
States applied on a consistent basis; and the supporting schedules included
in the Registration Statement present fairly the information required to be
stated therein.
(vii) Authorization and Validity of this Agreement, the Indentures
and the Notes. This Agreement has been duly authorized and, upon
execution and delivery by the Agents, will be a valid and binding agreement
of the Company; each of the Indentures has been duly authorized and
(assuming each Indenture has been duly authorized, executed and delivered by
the applicable Trustee) will be a valid and binding obligation of the
Company; the Notes have been duly and validly authorized for issuance, offer
and sale pursuant to this Agreement and, when issued, authenticated and
delivered pursuant to the provisions of this Agreement and the Indenture
under which they are to be issued against payment of the consideration
therefor specified in the Prospectus or pursuant to any Terms Agreement, the
Notes will constitute valid and legally binding obligations of the Company
enforceable in accordance with their terms, except as enforcement thereof
may be limited by bankruptcy, insolvency, reorganization, moratorium or
other laws relating to or affecting enforcement of creditors' rights
generally or by general equity principles, and except further as enforcement
thereof may be limited by (i) requirements that a claim with respect to any
Notes denominated other than in U.S. dollars (or a foreign currency or
currency unit judgment in respect of such claim) be converted into U.S.
dollars at a rate or exchange prevailing on a date determined pursuant to
applicable law or (ii) governmental authority to limit, delay or prohibit
the making of payments outside the United States; the Notes and each of the
Indentures are substantially in the form heretofore delivered to the Agents
and conform in all material respects to all statements relating thereto
contained in the Prospectus; and the Notes will be entitled to the benefits
provided by the Indenture under which they are issued.
(viii) Material Changes or Material Transactions. Since the
respective dates as of which information is given in the Registration
Statement and Prospectus, except as may otherwise be stated therein or
contemplated thereby, (a) there has been no material adverse change in the
condition, financial or otherwise, or in the earnings, business affairs or
business prospects of the Company and its subsidiaries considered as one
enterprise, whether or not arising in the ordinary course of business and
(b) there have been no material transactions entered into by the Company or
any of its subsidiaries other than those in the ordinary course of business.
(ix) No Defaults; Regulatory Approvals. Neither the Company nor any
of its Significant Subsidiaries is in violation of its charter or in default
in the performance or observance of any material obligation, agreement,
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<PAGE> 6
covenant or condition contained in any contract, indenture, mortgage, loan
agreement, note, lease or other instrument to which the Company is a party
or by which the Company or any of its properties may be bound; the execution
and delivery of this Agreement and the Indentures and the consummation of
the transaction contemplated herein, therein, in the Indentures, and
pursuant to any applicable Terms Agreement have been duly authorized by all
necessary corporate action and will not conflict with or constitute a breach
of, or default under, or result in the creation or imposition of any lien,
charge or encumbrance upon any property or assets of the Company or any of
its Significant Subsidiaries pursuant to, any contract, indenture, mortgage,
loan agreement, note, lease or other instrument to which the Company or any
of its subsidiaries is a party or by which it or any of them may be bound or
to which any of the property or assets of the Company or any such subsidiary
is subject, nor will such action result in any violation of the provisions
of the charter or by-laws of the Company or any law, administrative
regulation or administrative or court order or decree; and no consent,
approval, authorization, order or decree of any court or governmental agency
or body is required for the consummation by the Company of the transactions
contemplated by this Agreement, except such as may be required under the
1933 Act, the 1939 Act, the 1933 Act Regulations or state securities or Blue
Sky laws.
(x) Legal Proceedings; Contracts. Except as may be set forth in the
Registration Statement, there is no action, suit or proceeding before or by
any court or governmental agency or body, domestic or foreign, now pending,
or, to the knowledge of the Company, threatened against or affecting, the
Company or any of its subsidiaries, which if adversely determined, would in
the opinion of the Company, result in a material adverse change in the
condition, financial or otherwise, or in the earnings, business affairs or
business prospects of the Company and its subsidiaries considered as one
enterprise, or would materially and adversely affect the properties or
assets thereof or would materially and adversely affect the consummation of
this Agreement; and there are no contracts or documents of the Company or
any of its subsidiaries which are required to be filed as exhibits to the
Registration Statement by the 1933 Act or by the 1933 Act Regulations which
have not been so filed.
(xi) No Authorization, Approval or Consent Required. No
authorization, approval or consent of any court or governmental authority
or agency is necessary in connection with the sale of the Notes hereunder,
except such as may be required under the 1933 Act or the 1933 Act
Regulations or state securities or Blue Sky laws.
(b) Additional Certifications. Any certificate signed by any officer of
the Company and delivered to an Agent or to counsel for an Agent in connection
with an offering of Notes or the sale of Notes to such Agent as principal shall
be deemed a representation and warranty by the Company to such Agent as to the
matters covered thereby on the date of such certificate and at each
representation date referred to in Section 2(a) hereof subsequent thereto.
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<PAGE> 7
SECTION 3. Solicitations as Agent; Purchases as Principal.
(a) Solicitations as Agent. On the basis of the representations and
warranties herein contained, but subject to the terms and conditions herein set
forth, each of the Agents agrees, as an agent of the Company, to use its best
efforts to solicit offers to purchase the Notes upon the terms and conditions
set forth herein and in the Prospectus.
The Company reserves the right, in its sole discretion, to suspend
solicitation of purchases of the Notes through the Agents, as agents,
commencing at anytime for any period of time or permanently. Upon receipt of
instructions from the Company, the Agents will forthwith suspend solicitation
of purchases from the Company until such time as the Company has advised the
Agents that such solicitation may be resumed.
The Company agrees to pay an Agent a commission (as set forth in Schedule
A), in the form of a discount, in an amount not to exceed .75% of the principal
amount of each Note sold by the Company as a result of a solicitation made by
such Agent. Without the prior approval of the Company, the Agents may not
reallow any portion of the commissions to dealers or purchasers in connection
with the offer and sale of any Note.
The purchase price, interest rate, maturity date and other terms of the
Notes shall be agreed upon by the Company and an Agent and set forth in a
pricing supplement to the Prospectus to be prepared following each acceptance
by the Company of an offer for the purchase of Notes. Except as may be
otherwise provided in such supplement to the Prospectus, the Notes will be
issued in denominations of U.S. $1,000 or any amount in excess thereof which
is an integral multiple of U.S. $1,000. All Notes sold through an Agent as
agent will be sold at 100% of their principal amount unless otherwise agreed to
by the Company and such Agent.
(b) Purchases as Principal. Each sale of Notes to an Agent as principal
shall be made in accordance with the terms contained herein and pursuant to a
separate agreement which will provide for the sale of such Notes to, and the
purchase and reoffering thereof by, such Agent. Each such separate agreement
(which may be an oral agreement and confirmed in writing as described below
between an Agent and the Company) is herein referred to as a "Terms Agreement".
Unless the context otherwise requires, each reference contained herein to "this
Agreement" shall be deemed to include any applicable Terms Agreement between
the Company and an Agent. Each such Terms Agreement, whether oral (and
confirmed in writing, which may be by facsimile transmission) or in writing,
shall be with respect to such information (as applicable) as is specified in
Exhibit A hereto. An Agent's commitment to purchase Notes as principal
pursuant to any Terms Agreement shall be deemed to have been made on the basis
of the representations and warranties of the Company herein contained and shall
be subject to the terms and conditions herein set forth. Each Terms Agreement
shall specify the principal amount of Notes to be purchased by an Agent
pursuant thereto, the price to be paid to the Company for such Notes, the time
and place of delivery of and payment for such Notes and such other provision
(including further terms of the Notes) as may be mutually agreed upon. Unless
expressly authorized by the Company pursuant to the Terms Agreement, an Agent
is not
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<PAGE> 8
authorized to utilize a selling or dealer group in connection with the resale
of the Notes purchased. Such Terms Agreement shall also specify the
requirements for the opinions of counsel and officer's certificate pursuant to
Sections 7(b) and 7(c) hereof.
(c) Administrative Procedures. Administrative procedures with respect to
the sale of Notes shall be agreed upon from time to time by the Agents and the
Company (the "Procedures"). The Agents and the Company agree to perform the
respective duties and obligations specifically provided to be performed by them
in the Procedures.
SECTION 4. Covenants of the Company.
The Company covenants with the Agents as follows:
(a) Notice of Certain Events. The Company will notify the Agents
immediately (i) of the effectiveness of any amendment to the Registration
Statement, (ii) of the transmittal to the SEC for filing of any supplement to
the Prospectus or any document to be filed pursuant to the 1934 Act which will
be incorporated by reference in the Prospectus (it being understood and agreed
that such notification shall be deemed to have been given if the Company
transmits to the Agents copies of any such supplements or documents within
three business days after they are transmitted to the SEC), (iii) of the
receipt of any comments from the SEC with respect to the Registration Statement
or the Prospectus, (iv) of any request by the SEC for any amendment to the
Registration Statement or any amendment or supplement to the Prospectus or for
additional information, and (v) of the issuance by the SEC of any stop order
suspending the effectiveness of the Registration Statement or the initiation of
any proceedings for that purpose. The Company will make every reasonable
effort to prevent the issuance of any stop order and, if any stop order is
issued, to obtain the lifting thereof at the earliest possible moment.
(b) Notice of Certain Proposed Filings. The Company will give the Agents
notice of its intention to file or prepare any additional registration
statements with respect to the registration of additional Notes, any amendment
to the Registration Statement or any amendment or supplement to the Prospectus
(other than an amendment or supplement providing solely for a change in the
interest rates of Notes), whether by the filing of documents pursuant to the
1934 Act, the 1933 Act or otherwise, and will furnish the Agents with copies of
any such amendment or supplement or other documents proposed to be filed or
prepared a reasonable time in advance of such proposed filing or preparation,
as the case may be.
(c) Copies of the Registration Statement and the Prospectus. The Company
will deliver to the Agents as many conformed copies of the Registration
Statement (as originally filed) and of each amendment thereto (including
exhibits filed therewith or incorporated by reference therein and documents
incorporated by reference in the Prospectus) as the Agents may reasonably
request. The Company will furnish to the Agents as many copies of the
Prospectus (as amended or supplemented) as the Agents shall reasonably request
so long as the Agents are required to deliver a Prospectus in connection with
sales or solicitations of offers to purchase the Notes.
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<PAGE> 9
(d) Revisions of Prospectus -- Material Changes. Except as otherwise
provided in subsection (k) of this Section, if at any time during the term of
this Agreement any event shall occur or condition exist as a result of which it
is necessary, in the reasonable opinion of counsel for the Agents or counsel
for the Company, to further amend or supplement the Prospectus in order that the
Prospectus will not include an untrue statement of a material fact or omit to
state any material fact necessary in order to make the statements therein not
misleading in the light of the circumstances existing at the time the
Prospectus is delivered to a purchaser, or if it shall be necessary, in the
reasonable opinion of any of such counsel, to amend or supplement the
Registration Statement or the Prospectus in order to comply with the
requirements of the 1933 Act or the 1933 Act Regulations, immediate notice
shall be given, and confirmed in writing, to each Agent to cease the
solicitation of offers to purchase the Notes in the Agent's capacity as agent
and to cease sales of any Notes such Agent may then own as principal pursuant
to a Terms Agreement, and the Company will promptly prepare and file with the
SEC such amendment or supplement, whether by filing documents pursuant to the
1934 Act, the 1933 Act or otherwise, as may be necessary to correct such
untrue statement or omission or to make the Registration Statement and
Prospectus comply with such requirements.
(e) Prospectus Revisions -- Periodic Financial Information. Except as
otherwise provided in subsection (k) of this Section, on or prior to the date
on which there shall be released to the general public interim financial
statement information related to the Company with respect to each of the first
three quarters of any fiscal year or preliminary financial statement
information with respect to any fiscal year, the Company shall furnish such
information to the Agents, confirmed in writing, and shall cause the Prospectus
to be amended or supplemented to include or incorporate by reference capsule
financial information with respect thereto and corresponding information for
the comparable period of the preceding fiscal year, as well as such other
information and explanation as shall be necessary for an understanding thereof
or as shall be required by the 1933 Act or the 1933 Act Regulations.
(f) Prospectus Revisions -- Audited Financial Information. Except as
otherwise provided in subsection (k) of this Section, on or prior to the date
on which there shall be released to the general public financial information
included in or derived from the audited financial statements of the Company for
the preceding fiscal year, the Company shall cause the Registration Statement
and the Prospectus to be amended, whether by the filing of documents pursuant
to the 1934 Act, the 1933 Act or otherwise, to include or incorporate by
reference such audited financial statements and the report or reports, and
consent or consents to such inclusion or incorporation by reference, of the
independent accountants with respect thereto, as well as such other information
and explanations as shall be necessary for an understanding of such financial
statements or as shall be required by the 1933 Act or the 1933 Act Regulations.
(g) Earnings Statements. The Company will make generally available to its
security holders as soon as practicable, but not later than 90 days after the
close of the period covered thereby, an earnings statement (in form complying
with the provisions of Rule 158 under the 1933 Act) covering each twelve month
period beginning, in each case, not later than the first day of the Company's
fiscal quarter next following the "effective date" (as defined in such Rule
158) of the Registration Statement with respect to each sale of Notes.
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<PAGE> 10
(h) Blue Sky Qualifications. The Company will endeavor, in cooperation
with the Agents, to qualify the Notes for offering and sale under the
applicable securities laws of such states and other jurisdictions of the United
States as the Agents may designate, and will maintain such qualifications in
effect for as long as may be required for the distribution of the Notes;
provided, however, that the Company shall not be obligated to file any general
consent to service of process or to qualify as a foreign corporation in any
jurisdiction in which it is not so qualified. The Company will file such
statements and reports as may be required by the laws of each jurisdiction in
which the Notes have been qualified as above provided. The Company will
promptly advise the Agents of the receipt by the Company of any notification
with respect to the suspension of the qualification of the Notes for sale in
any such state or jurisdiction of the initiating or threatening of any
proceeding for such purpose.
(i) 1934 Act Filings. The Company, during the period when the Prospectus
is required to be delivered under the 1933 Act, will file promptly all
documents required to be filed with the SEC pursuant to Sections 13(a), 14 or
15(d) of the 1934 Act.
(j) Stand-Off Agreement. If required pursuant to the terms of a Terms
Agreement, between the date of any Terms Agreement and the Settlement Date with
respect to such Terms Agreement, the Company will not, without the prior
consent of the Agent which is a party to such Terms Agreement, offer or sell
to the public, or enter into any agreement to sell to the public, any debt
securities of the Company (other than the Notes that are to be sold pursuant
to such Terms Agreement and commercial paper in the ordinary course of
business).
(k) Suspension of Certain Obligations. The Company shall not be required
to comply with the provisions of subsections (d), (e) or (f) of this Section
during any period from the time (i) each of the Agents shall have suspended
solicitation of purchases of the Notes in its capacity as agent pursuant to a
request from the Company and (ii) the Agents shall not then hold any Notes as
principal purchased from the Company pursuant to a Terms Agreement, to the time
the Company shall determine that solicitation of purchases of the Notes should
be resumed or shall subsequently enter into a new Terms Agreement with an
Agent.
SECTION 5. Conditions of Obligations.
The obligations of an Agent to solicit offers to purchase the Notes as agent
of the Company, the obligations of any purchasers of the Notes sold through an
Agent as agent, and any obligation of an Agent to purchase Notes pursuant to a
Terms Agreement will be subject to the accuracy of the representations and
warranties on the part of the Company herein and to the accuracy of the
statements of the Company's officers made in any certificate furnished
pursuant to the provisions hereof, to the performance and observance by the
Company of all its covenants and agreements herein contained and to the
following additional conditions precedent:
(a) Legal Opinions. On the date hereof, the Agents shall have received the
following legal opinions, dated as of the date hereof, and in substantially the
form and substance set forth below and satisfactory to the Agents:
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<PAGE> 11
(1) Opinion of Company Counsel. The opinion of James R. Berens, Esq.,
counsel to the Company (or such other lawyer who serves as General
Counsel of the Company or over whom such General Counsel exercises
general supervision or review in connection with securities law
matters for the Company) ("Company Counsel"), to the effect that:
(i) The Company is a corporation duly organized, validly existing and in
good standing under the laws of the State of Iowa.
(ii) The Company has corporate power and authority to own, lease and
operate its properties and to conduct its business as described in the
Registration Statement.
(iii) To the best of such counsel's knowledge, the Company is duly
qualified as a foreign corporation to transact business and is in good standing
in each jurisdiction in which such qualification is required, by virtue of the
direct making of loans and the direct purchase of installment sale contracts,
except where the failure to so qualify would not have a material adverse effect
on the condition, financial or otherwise, on the earnings, business affairs or
business prospects of the Company and its subsidiaries considered as one
enterprise.
(iv) Each Significant Subsidiary of the Company has been duly incorporated
and is validly existing as a corporation or business trust, in good standing
under the laws of the jurisdiction of its organization, has corporate or other
power and authority to own, lease and operate its properties and conduct its
business as described in the Registration Statement, and, to the best of such
counsel's knowledge, is duly qualified as a foreign corporation to transact
business and is in good standing in each jurisdiction in which such
qualification is required, whether by reason of the ownership or leasing of
property or the conduct of business, except where the failure to so qualify
would not have a material adverse effect on the condition, financial or
otherwise, or the earnings, business affairs or business prospects of the
Company and its subsidiaries considered as one enterprise; all of the issued and
outstanding capital stock of each such Significant Subsidiary has been duly
authorized and validly issued, is fully paid and non-assessable, and, except for
directors' qualifying shares, is owned by the Company, free and clear of any
mortgage, pledge, lien, encumbrance, claim or equity.
(v) This Agreement has been duly authorized, executed and delivered by
the Company and constitutes the legal, valid, and binding agreement of
the Company, enforceable in accordance with its terms, except as enforcement
thereof may be limited by: (a) bankruptcy, insolvency, reorganization,
arrangement, fraudulent conveyance, moratorium or other laws relating to or
affecting the rights of creditors generally; (b) rights to indemnification and
contribution which may be limited by applicable law or equitable principles; (c)
general principles of equity, including without limitation concepts of
materiality, reasonableness, good faith and fair dealing, and the possible
unavailability of specific performance or injunctive relief, regardless of
whether such enforceability is considered in a proceeding in equity or at law;
and (d) the unenforceability under certain
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<PAGE> 12
circumstances of provisions imposing penalties, forfeitures, late
payment charges, or an increase in interest rate upon delinquency in payment or
the occurrence of any event of default.
(vi) Each of the Indentures has been duly authorized, executed and
delivered by the Company and (assuming each Indenture has been duly authorized,
executed and delivered by the applicable Trustee) constitutes a valid and
binding agreement of the Company, except as enforcement thereof may be limited
by: (a) bankruptcy, insolvency, reorganization, arrangement, fraudulent
conveyance, moratorium or other laws relating to or affecting the rights of
creditors generally; (b) rights to indemnification and contribution which may be
limited by applicable law or equitable principles; (c) general principles of
equity, including without limitation concepts of materiality, reasonableness,
good faith and fair dealing, and the possible unavailability of specific
performance or injunctive relief, regardless of whether such enforceability is
considered in a proceeding in equity or at law; and (d) the unenforceability
under certain circumstances of provisions imposing penalties, forfeitures, late
payment charges, or an increase in interest rate upon delinquency in payment or
the occurrence of any event of default; and except further as enforcement
thereof may be limited by (A) requirements that a claim with respect to any
Notes denominated other than in U.S. dollars (or a foreign currency or foreign
currency unit judgment in respect of such claim) be converted into United States
dollars at a rate of exchange prevailing on a date determined pursuant to
applicable law or (B) governmental authority to limit, delay or prohibit the
making of payments in foreign currency or currency units or payments outside the
United States.
(vii) The Notes, have been duly authorized and, when duly executed,
issued, authenticated and delivered pursuant to the provisions of this
Agreement and the Senior Indenture or the Senior Subordinated Indenture, as
appropriate, will constitute valid and binding obligations of the Company
enforceable in accordance with their terms and will be entitled to the benefits
provided by the applicable Indenture, except as enforcement thereof may be
limited by: (a) bankruptcy, insolvency, reorganization, arrangement,
fraudulent conveyance, moratorium or other similar laws relating to or affecting
the rights of creditors generally; (b) rights to indemnification and
contribution which may be limited by applicable law or equitable principles; (c)
general principles of equity, including without limitation concepts of
materiality, reasonableness, good faith and fair dealing, and the possible
unavailability of specific performance or injunctive relief, regardless of
whether such enforceability is considered in a proceeding in equity or at law;
and (d) the unenforceability under certain circumstances of provisions imposing
penalties, forfeitures, late payment charges, or an increase in interest rate
upon delinquency in payment or the occurrence of any event of default; and
except further as enforcement thereof may be limited by (A) requirements that a
claim with respect to any Notes denominated other than in U.S. dollars (or a
foreign currency or foreign currency unit judgment in respect of such claim) be
converted
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<PAGE> 13
into United States dollars at a rate of exchange prevailing on a date
determined pursuant to applicable law or (B) governmental authority to limit,
delay or prohibit the making of payments in foreign currency or currency units
or payments outside the United States, and each holder of Notes will be entitled
to the benefits of the Indenture under which the Notes were issued.
(viii) The terms and provisions of the Notes conform in all
material respects to the description thereof contained in the Prospectus
under the caption "Description of Debt Securities" and "Description of Notes."
(ix) Each of the Indentures has been qualified under the 1939 Act.
(x) The Registration Statement has been declared effective under the 1933
Act and, to the best of such counsel's knowledge, no stop order suspending the
effectiveness of the Registration Statement has been issued and no proceedings
for that purpose have been instituted or are pending or contemplated under the
1933 Act.
(xi) The Registration Statement, when it became effective, and the
Prospectus when it was filed with the SEC (it being understood that such
counsel has not been requested to and does not give any opinion or make any
comment with respect to the financial statements and schedules and other
financial or statistical information contained or incorporated by reference in
the Registration Statement or Prospectus, or the Statement of Eligibility and
Qualification of the Trustee on Form T-1), complied as to form in all material
respects with the 1933 Act.
(xii) To the best of such counsel's knowledge, there are no legal or
governmental proceedings pending or threatened which are required to be
disclosed in the Prospectus, other than those disclosed therein, and all pending
legal or governmental proceedings to which the Company or any subsidiary of the
Company is a party or of which any of their property is the subject which are
not described in the Registration Statement, including ordinary routine
litigation incidental to the business of the Company or any such subsidiary,
are, considered in the aggregate, not material to the Company and its
subsidiaries, taken as a whole.
(xiii) To the best of such counsel's knowledge, neither the Company nor any
of its Significant Subsidiaries is in violation of its charter or in default in
the performance or observance of any material obligation, agreement, covenant
or condition contained in any contract, indenture, mortgage, loan agreement,
note or lease to which the Company is a party or by which the Company or any of
its properties may be bound. The execution and delivery of this Agreement or
of each of the Indentures, or the consummation by the Company of the
transactions contemplated by this Agreement and the Notes and the incurrence
of the obligations and consummation of the transactions therein contemplated
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<PAGE> 14
will not conflict with or constitute a breach of, or default under, or
result in the creation or imposition of any lien, charge or encumbrance upon any
property or assets of the Company or any of its Significant Subsidiaries
pursuant to, any contract, indenture, mortgage, loan agreement, note, lease or
other instrument known to such counsel and to which the Company or any such
subsidiaries is a party or by which it or any of them may be bound or to which
any of the property or assets of the Company or any such subsidiaries is
subject, or any law, administrative regulation or administrative or court decree
known to such counsel to be applicable to the Company of any court or
governmental agency, authority or body or any arbitrator having jurisdiction
over the Company; nor will such action result in any violation of the provisions
of the charter or by-laws of the Company.
(xiv) To the best of such counsel's knowledge, there are no contracts,
indentures, mortgages, loan agreements, notes, leases or other instruments or
documents required to be described or referred to in the Registration
Statement or to be filed as exhibits thereto other than those described or
referred to therein or filed or incorporated by reference as exhibits thereto,
the descriptions thereof or references thereto are correct, and no default
exists in the due performance or observance of any material obligation,
agreement, covenant or condition contained in any contract, indenture,
mortgage, loan agreement, note, lease or other instrument so described,
referred to, filed or incorporated by reference.
(xv) No consent, approval, authorization, order or decree of any court or
governmental agency or body including the SEC is required for the
consummation by the Company of the transactions contemplated by this Agreement,
except such as may be required under the 1933 Act, the 1939 Act, the 1933 Act
Regulations or state securities laws.
(xvi) Each document filed pursuant to the 1934 Act and incorporated by
reference in the Prospectus complied when filed as to form in all material
respects with the 1934 Act and the 1934 Act Regulations thereunder (except that
such counsel need express no opinion as to the financial statements or other
data of a financial or statistical nature).
(2) Opinion of Counsel to the Agents. The opinion of Orrick
Herrington & Sutcliffe, counsel to the Agents, covering the
matters referred to in subparagraph (1) under the subheadings (i)
and (v) to (xi), inclusive, above. Such counsel may rely upon the
opinion of Company Counsel, as to all matters of Iowa law and upon
certificates of the Company as to authorization and execution of
this Agreement, the applicable Indentures and the Notes and on
certificates of the Trustees as to authorization and execution of
the applicable Indentures.
(3) In giving their opinions required by subsection (a) (1) and (a)
(2) of this Section, Company Counsel and Orrick, Herrington
& Sutcliffe shall each additionally state that nothing has come to
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<PAGE> 15
their attention that would lead them to believe that the
Registration Statement (including the documents incorporated by
reference therein) at the time it became effective, and if an
amendment to the Registration Statement or an Annual Report on
Form 10-K has been filed by the Company with the SEC subsequent to
the effectiveness of the Registration Statement, then at the time
such amendment became effective or at the time of the most recent
such filing, and at the date hereof, or (if such opinion is being
delivered in connection with a Terms Agreement pursuant to Section
5(b) hereof) at the date of any Terms Agreement and at the
Settlement Date with respect thereto, as the case may be,
contained or contains an untrue statement of a material fact or
omitted or omits to state a material fact required to be stated
therein or necessary to make the statements therein, not
misleading or that the Prospectus, as amended or supplemented at
the date hereof, or (if such opinion is being delivered in
connection with a Terms Agreement pursuant to Section 5(b) hereof)
at the date of any Terms Agreement and at the Settlement Date with
respect thereto, as the case maybe, contained or contains an
untrue statement of a material fact or omitted or omits to state a
material fact required to be stated therein or necessary to make
the statements therein, in the light of the circumstances under
which they were made, not misleading (it being understood that
such counsel has not been requested to and does not give any
opinion or make any comment with respect to the financial
statements and schedules and other financial or statistical
information contained or incorporated by reference in the
Registration Statement or the Prospectus, or the Statement of
Eligibility and Qualification of the Trustee on Form T-1).
(b) Officer's Certificate. At the date hereof the Agents shall have
received a certificate of the President or Vice President and the chief
financial or chief accounting officer of the Company, substantially in the form
of Exhibit I hereto and dated as of the date hereof, to the effect that (i)
since the respective dates as of which information is given in the Registration
Statement and the Prospectus or since the date of any applicable Terms
Agreement, there has not been any material adverse change in the condition,
financial or otherwise, or in the earnings, business affairs or business
prospects of the Company and its subsidiaries considered as one enterprise,
whether or not arising in the ordinary course of business, (ii) the other
representations and warranties of the Company contained in Section 2 hereof are
true and correct with the same force and effect as though expressly made at and
as of the date of such certificate, (iii) the Company has performed or complied
with all agreements and satisfied all conditions on its part to be performed or
satisfied at or prior to the date of such certificate, and (iv) that no stop
order suspending the effectiveness of the Registration Statement has been
issued and no proceedings for that purpose have been initiated or threatened by
the SEC.
(c) Comfort Letter. On the date hereof, the Agents shall have received a
letter addressed to the Agents from Deloitte & Touche, dated as of the date
hereof to the effect set forth in Exhibit II hereto, with respect to the
Registration Statement and the Prospectus.
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<PAGE> 16
(d) Other Documents. On the date hereof, counsel to the Agents, and on
each Settlement Date with respect to any applicable Terms Agreement, counsel to
the Agent that is a party to such Terms Agreement, shall have been furnished
with such documents and opinions as such counsel may reasonably require for the
purpose of enabling such counsel to pass upon the issuance and sale of Notes as
herein contemplated and related proceedings, or in order to evidence the
accuracy and completeness of any of the representations and warranties, or the
fulfillment of any of the conditions, herein contained; and all proceedings
taken by the Company in connection with the issuance and sale of the Notes as
herein contemplated shall be in all material respects satisfactory in form and
substance to the Agent or Agents and to counsel to the Agent or Agents.
If any condition specified in this Section 5 shall not have been fulfilled
when and as required to be fulfilled, this Agreement (or, at the option of the
Agent that is a party thereto, and applicable Terms Agreement) may be
terminated by the Agents by notice to the Company at any time and any such
termination shall be without liability of any party to any other party, except
that the covenant regarding provision of an earnings statement set forth in
Section 4(g) hereof, the provisions concerning payment of expenses under
Section 10 hereof, the indemnity and contribution agreement set forth in
Sections 8 and 9 hereof, the provisions concerning the representations,
warranties and agreements to survive delivery of Section 11 hereof and the
provisions set forth under "Parties" of Section 14 hereof shall remain in
effect.
SECTION 6. Delivery of and Payment for Notes Sold through the Agents.
Delivery of Notes sold through an Agent as agent shall be made by the
Company to such Agent for the account of any purchaser only against payment
therefor in immediately available funds. In the event that a purchaser shall
fail either to accept delivery of or to make payment for a Note on the date
fixed for settlement, such Agent shall promptly notify the Company and deliver
the Note to the Company, and, if such Agent has theretofore paid the Company
for such Note, the Company will promptly return such funds to such Agent. If
such failure occurred for any reason other than default by an Agent in the
performance of its obligations hereunder, the Company will reimburse such Agent
on an equitable basis for its loss of the use of the funds for the period such
funds were credited to the Company's account.
SECTION 7. Additional Covenants of the Company.
The Company covenants and agrees with each Agent that:
(a) Reaffirmation of Representations and Warranties. Each acceptance by it
of an offer for the purchase of Notes, and each delivery of Notes to an Agent
pursuant to a Terms Agreement, shall be deemed to be an affirmation that the
representations and warranties of the Company contained in this Agreement and
in any certificate theretofore delivered to such Agent pursuant hereto are true
and correct at the time of such acceptance or sale, as the case may be, and an
undertaking that such representations and warranties will be true and correct
at the time of delivery to the purchaser or his agent, or to an Agent, of the
Note or Notes relating to such acceptance or sale, as the case may be, as though
made
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<PAGE> 17
at and as of each such time (and it is understood that such representations and
warranties shall relate to the Registration Statement and Prospectus as amended
and supplemented to each such time).
(b) Subsequent Delivery of Certificates. Each time that the Registration
Statement or the Prospectus shall be amended or supplemented (other than by an
amendment or supplement providing solely for a change in the interest rates of
Notes or similar changes, and, unless the Agents shall otherwise specify in
writing, other than by an amendment or supplement which relates exclusively to
an offering of debt securities other than the Notes) or there is filed with the
SEC any document incorporated by reference into the Prospectus (other than any
Current Report on Form 8-K relating exclusively to the issuance of debt
securities under the Registration Statement, unless the Agents shall otherwise
specify in writing) or (if required pursuant to the terms of a Terms Agreement)
the Company sells Notes to an Agent pursuant to a Terms Agreement, the Company
shall furnish or cause to be furnished to the Agent or Agents, as the case may
be, forthwith a certificate dated the date of filing with the SEC of such
supplement or document, the date of effectiveness of such amendment, or the
date of such sale, as the case may be, in form satisfactory to the Agents to the
effect that the statements contained in the certificate referred to in Section
5(b) hereof which were last furnished to the Agents are true and correct at the
time of such amendment, supplement, filing or sale, as the case may be, as
though made at and as of such time (except that such statements shall be deemed
to relate to the Registration Statement and the Prospectus as amended and
supplemented to such time) or, in lieu of such certificate, a certificate of
the same tenor as the certificate referred to in said Section 5(b), modified as
necessary to relate to the Registration Statement and the Prospectus as amended
and supplemented to the time of delivery of such certificate.
(c) Subsequent Delivery of Legal Opinions. Each time that the
Registration Statement or the Prospectus shall be amended or supplemented
(other than by an amendment or supplement providing solely for a change in the
interest rates of the Notes or similar changes or soley for the inclusion of
additional financial information, and, unless the Agents shall otherwise
specify in writing, other than by an amendment or supplement which relates
exclusively to an offering of debt securities other than the Notes) or there is
filed with the SEC any document incorporated by reference into the Prospectus
(other than any Current Report on Form 8-K or Quarterly Report on Form 10-Q,
unless the Agents shall otherwise specify in writing), or (if required pursuant
to the terms of a Terms Agreement) the Company sells Notes to an Agent pursuant
to a Terms Agreement, the Company shall furnish or cause to be furnished
forthwith to the Agent or Agents and to counsel to the Agent or Agents, as the
case may be, a written opinion of Company Counsel, or other counsel
satisfactory to the Agents dated the date of filing with the SEC of such
supplement or document, the date of effectiveness of such amendment, or the date
of such sale, as the case may be, in form and substance satisfactory in all
material respects to the Agents, of the same tenor as the opinion referred to in
Section 5(a)(1) hereof, but modified, as necessary, to relate to the
Registration Statement and the Prospectus as amended and supplemented to the
time of delivery of such opinion; or, in lieu of such opinion, counsel last
furnishing such opinion to the Agents shall furnish the Agents with a letter
substantially in the form of Exhibit III
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<PAGE> 18
hereto to the effect that the Agents may rely on such last opinion to the same
extent as though it was dated the date of such letter authorizing reliance
(except that statements in such last opinion shall be deemed to relate to the
Registration Statement and the Prospectus as amended and supplemented to the
time of delivery of such letter authorizing reliance).
(d) Subsequent Delivery of Comfort Letters. Each time that the
Registration Statement or the Prospectus shall be amended or supplemented to
include additional financial information or there is filed with the SEC any
document incorporated by reference into the Prospectus which contains
additional financial information or, (if required pursuant to the terms of a
Terms Agreement) the Company sells Notes to an Agent pursuant to a Terms
Agreement, the Company shall cause Deloitte & Touche forthwith to furnish the
Agent or Agents, as the case may be, a letter, dated the date of effectiveness
of such amendment, supplement or document with the SEC, or the date of such
sale, as the case may be, in form satisfactory in all material respects to the
Agent or Agents, as the case may be, of the same tenor as the portions of the
letter referred to in Section 5(c) hereof but modified to relate to the
Registration Statement and Prospectus, as amended and supplemented to the date
of such letter, and of the same general tenor as the portions of the letter
refered to in Section 5(c) with such changes as maybe necessary to reflect
changes in the financial statements and other information derived from the
accounting records of the Company; provided, however, that if the Registration
Statement or the Prospectus is amended or supplemented soley to include
financial information as of and for a fiscal quarter, Deloitte & Touche may
limit the scope of such letter to the unaudited financial statements included
in such amendment or supplement unless any other information included therein
of an accounting, financial or statistical nature is of such a nature that, in
the reasonable judgment of the Agent or the Agents, as the case may be, such
letter should cover such other information.
SECTION 8. Indemnification.
(a) Indemnification of the Agents. The Company agrees to indemnify and
hold harmless each Agent and each person, if any, who controls an Agent within
the meaning of Section 15 of the 1933 Act as follows:
(i) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of any untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement
(or any amendment thereto), or the omission or alleged omission therefrom
of a material fact necessary to make the statements therein not misleading
or arising out of any untrue statement or alleged untrue statement of a
material fact contained in the Prospectus (or any amendment or supplement
thereto) or the omission or alleged omission therefrom of a material fact
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading, unless such untrue statement or
omission or such alleged untrue statement or omission was made in reliance
upon and in conformity with written information (or oral information
confirmed in writing) furnished to the Company by an Agent expressly for
use in the Registration Statement or the Prospectus;
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<PAGE> 19
(ii) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission, if such settlement is effected with
the written consent of the Company; and
(iii) against any and all expense whatsoever, as incurred, (including
the fees and disbursements of counsel chosen by an Agent) reasonably
incurred in investigating, preparing or defending against any litigation, or
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue statement or
omission, or any such alleged untrue statement or omission, to the extent
that any such expense is not paid under (i) or (ii) above;
(b) Indemnification of Company. Each Agent agrees to indemnify and hold
harmless the Company, its directors, each of its officers who signed the
Registration Statement, and each person, if any, who controls the Company
within the meaning of Section 15 of the 1933 Act against any and all loss,
liability, claim damage and expense described in the indemnity contained
in subsection (a) of this Section, as incurred, but only with respect to untrue
statements or omissions, or alleged untrue statements or omissions, made in the
Registration Statement (or any amendment thereto) or the Prospectus (or any
amendment or supplement thereto) in reliance upon and in conformity with written
information furnished to the Company by such Agent expressly for use in the
Registration Statement (or any amendment thereto) or the Prospectus (or any
amendment or supplement thereto).
(c) General. Each indemnified party shall give prompt notice to each
indemnifying party of any action commenced against it in respect of which
indemnity may be sought hereunder, but failure to so notify an indemnifying
party shall not relieve such indemnifying party from any liability which it may
have otherwise than on account of this indemnity agreement. An indemnifying
party may participate at its own expense in the defense of such action. In no
event shall the indemnifying parties be liable for the fees and expenses of
more than one counsel (in addition to any local counsel) for all indemnified
parties in connection with any one action or separate but similar or related
actions in the same jurisdiction arising out of the same general allegations or
circumstances.
SECTION 9. Contribution.
In order to provide for just and equitable contribution in circumstances in
which the indemnity agreement provided for in Section 8 hereof is for any
reason held to be unenforceable by the indemnified parties although applicable
in accordance with its terms, each Company and each Agent shall contribute to
the aggregate losses, liabilities, claims, damages and expenses of the nature
contemplated by said indemnity agreement incurred by the Company and the
Agents, as incurred, in such proportions that each Agent is responsible for that
portion represented by the percentage that the total commissions and
underwriting discounts received by such Agent to the date of such liability
bears to the
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<PAGE> 20
total sales price received by the Company from the sale of Notes sold to or
through such Agent to the date of such liability, and the Company is
responsible for the balance; provided, however, that no person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the 1933
Act) shall be entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation. For purposes of this Section, each person,
if any, who controls an Agent within the meaning of Section 15 of the 1933 Act
shall have the same rights to contribution as the Agents, and each director of
the company, each officer of the Company who signed the Registration Statement,
and each person, if any, who controls the Company within the meaning of Section
15 of the 1933 Act shall have the same rights to contribution as the Company.
SECTION 10. Payment of Expenses
The Company will pay all expenses incident to the performance of its
obligations under this Agreement, including:
(i) The preparation and filing of the Registration Statement and all
amendments thereto and the Prospectus and any amendments or supplements
thereto (to the extent related to the Notes and the issuance thereof);
(ii) The preparation, filing and reproduction of this Agreement;
(iii) The preparation, printing, issuance and delivery of the Notes,
including any fees and expenses relating to the use of book-entry notes;
(iv) The fees and disbursements of the Company's accountants and counsel,
of each Trustee and its counsel, and of any Calculation Agent or Exchange
Rate Agent;
(v) The reasonable fees and disbursements of counsel to the Agents incurred
from time to time in connection with the transactions contemplated hereby:
(vi) The qualification of the Notes under state securities laws in
accordance with the provisions of Section 4(h) hereof, including filing fees
and the reasonable fees (not to exceed $10,000.00 annually) and
disbursements of counsel for the Agents in connection therewith and in
connection with the preparation of any Blue Sky Survey and and Legal
Investment Survey;
(vii) The printing and delivery to the Agents in reasonable quantities as
hereinabove stated of copies of the Registration Statement and any
amendments thereto, and of the Prospectus and any amendments or supplements
thereto, and the delivery by the Agents of the Prospectus and any amendments
or supplements thereto in connection with solicitations or confirmations of
sales of the Notes;
(viii) The preparation, printing and delivery to the Agents of copies of
each of the Indentures and all supplements and amendments thereto;
(ix) Any fees charged by rating agencies for the rating of the Notes; and
- 20 -
<PAGE> 21
(x) Any advertising and other out-of-pocket expenses of the Agents incurred
with the written approval of the Company.
SECTION 11. Representations, Warranties and Agreements to Survive Delivery.
All representations, warranties and agreements contained in this Agreement
or in certificates of officers of the Company submitted pursuant hereto or
thereto, shall remain operative and in full force and effect, regardless of any
investigation made by or on behalf of the Agents or any controlling person of
an Agent, or by or on behalf of the Company, and shall survive each delivery of
and payment for any of the Notes.
SECTION 12. Termination.
(a) Termination of this Agreement. This Agreement (excluding any Terms
Agreement) may be terminated for any reason, at any time by either the Company
as to an Agent or, in the case of an Agent, by such Agent insofar as this
Agreement relates to such Agent, upon the giving of 30 days' written notice of
such termination to the other parties hereto.
(b) Termination of a Terms Agreement. The Agent who is a party to a Terms
Agreement may terminate such Terms Agreement, immediately upon notice to the
Company, at any time prior to the Settlement Date relating thereto (i) if there
has been, since the date of such Terms Agreement or since the respective dates
as of which information is given in the Registration Statement, any material
adverse change in the condition, financial or otherwise, or in the earnings,
business affairs or business prospects of the Company and its subsidiaries
considered as one enterprise, whether or not arising in the ordinary course of
business, (ii) if there shall have occurred any adverse change in the financial
markets in the United States in connection with any outbreak or escalation of
hostilities or other national or international calamity or crises the effect
of which is such as to make it, in the good faith and reasonable judgment of
either Agent, impractical to market the Notes or enforce contracts for the sale
of the Notes, (iii) if trading in any securities of the Company has been
suspended by the SEC or a national securities exchange, or if trading generally
on either the American Stock Exchange or the New York Stock Exchange shall have
been suspended, or minimum or maximum prices for trading have been fixed, or
maximum ranges for prices for securities have been required, by either of said
exchanges or by order of the SEC or any other governmental authority, or if a
banking moratorium shall have been declared by either Federal or New York
authorities or if a banking moratorium shall have been declared by the relevant
authorities in the country or countries of origin of any foreign currency or
currencies in which the Notes are denominated or payable, (iv) if the rating
assigned by any nationally recognized securities rating agency (to which the
Company has applied for such rating) to any debt securities of the Company as
of the date of any applicable Terms Agreement shall have been lowered since that
date or if any such rating agency shall have publicly announced that it has
placed any debt securities of the Company on what is commonly termed a "watch
list" for possible downgrading, or (v) if there shall have come to either
Agent's attention any facts that would cause such Agent to reasonably determine
in good faith that the Prospectus, at the time it was required to be delivered
to a purchaser of Notes, contained an untrue statement of a material fact or
- 21 -
<PAGE> 22
omitted to state a material fact necessary in order to make the statements
therein, in light of the circumstances existing at the time of such delivery,
not misleading.
(c) General. In the event of any such termination, neither party will
have any liability to the other party hereto, except that (i) in the event such
termination occurs pursuant to Section 12(a) hereof, an Agent shall be entitled
to any commission earned in accordance with the third paragraph of Section 3(a)
hereof, (ii) if at the time of termination (a) an Agent shall own any Notes
purchased pursuant to a Terms Agreement with the intention of reselling them or
(b) an offer to purchase any of the Notes has been accepted by the Company but
the time of delivery to the purchaser or his agent of the Note or Notes
relating thereto has not occurred, the covenants set forth in Section 4 and 7
hereof shall remain in effect until such Notes are so resold or delivered, as
the case may be, and (iii) the covenant set forth in Section 4(g) hereof, the
provisions of Section 5 hereof, the indemnity and contribution agreement set
forth in Sections 8 and 9 hereof, and the provisions of Section 11 and 15
hereof shall remain in effect.
SECTION 13. Notices.
Unless otherwise provided herein, all notices required under the terms and
provisions hereof shall be in writing, either delivered by hand, by mail or by
telex, telecopies or telegram, and any such notice shall be effective when
received at the address specified below.
If to the Company:
Norwest Financial, Inc.
206 Eighth Street
Des Moines, Iowa 50309
Attention: Treasurer's Department
If to Merrill Lynch & Co.:
Merrill Lynch & Co.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
Merrill Lynch World Headquarters
North Tower - 23rd Floor
World Financial Center
New York, New York 10281-1323
Attention: MTN Product Management,
J. Patrick Hannon
If to Bear, Stearns, & Co. Inc:
Bear, Stearns & Co. Inc.
245 Park Avenue
New York, New York 10167
Attention: __________________________________
- 22 -
<PAGE> 23
If to Donaldson, Lufkin & Jenrette Securities Corporation:
Donaldson, Lufkin & Jenrette
Securities Corporation
140 Broadway
New York, New York 10005
Attention: __________________________________
If to PaineWebber Incorporated:
PaineWebber Incorporation
1285 Avenue of the Americas
New York, New York 10019
Attention: _________________________________
If to Salomon Brothers Inc:
Salomon Brothers Inc
7 World Trade Center - 31st Floor
New York, New York 10048
Attention: Medium-Term Note Group
Very truly yours,
NORWEST FINANCIAL, INC.
By: __________________________________
Name:
Title:
Accepted:
MERRILL LYNCH, PIERCE, FENNER & SMITH PAINEWEBBER INCORPORATED
INCORPORATED
By: ____________________________________ By:___________________________________
Name: Name:
Title: Title:
BEAR, STEARNS & CO. INC. SALOMON BROTHERS INC
By: ____________________________________ By:___________________________________
Name: Name:
Title: Title:
DONALDSON, LUFKIN & JENRETTE
SECURITIES CORPORATION
By: ____________________________________
Name:
Title:
- 23 -
<PAGE> 24
EXHIBIT A
The following terms, if applicable, shall be agreed to by an Agent and the
Company pursuant to each Terms Agreement:
Principal Amount: $____________________
(or principal amount of foreign currency)
Interest Rate:
If Fixed Rate Note, Interest Rate:
If Floating Rate Note:
Interest Rate Basis:
Initial Interest Rate:
Initial Interest Reset Date:
Spread or Spread Multiplier, if any:
Interest Rate Reset Month(s):
Interest Payment Month(s):
Index Maturity:
Maximum Interest Rate, if any:
Minimum Interest Rate, if any:
Interest Rate Reset Period:
Interest Payment Period:
Interest Payment Date:
Calculation Agent:
If Redeemable:
Initial Redemption Date:
Initial Redemption Percentage:
Annual Redemption Percentage Reduction:
Date of maturity:
Whether the date of maturity may be extended
Purchase Price: ____%
Settlement Date and Time;
Currency of Denomination:
Denominations (if currency is other than U.S. dollar):
Currency of Payment:
Whether Senior or Senior Subordinated
Whether book entry or certificated
Additional Terms:
Also, agreement as to whether the following will be required:
Officer's Certificate pursuant to Section 7 (b)
of the Distribution Agreement.
Legal Opinion pursuant to Section 7 (c) of the
Distribution Agreement
Comfort Letter pursuant to Section 7 (d) of the
Distribution Agreement.
Stand-off Agreement pursuant to Section 4 (j) of the
Distribution Agreement.
<PAGE> 25
SCHEDULE A
As compensation for the services of an Agent hereunder, the Company shall
pay it, on a discount basis, a commission for the sale of each Note which may
be equal to the principal amount of such Note multiplied by the appropriate
percentage set forth below:
PERCENT OF
MATURITY RANGES PRINCIPAL AMOUNT
From 9 months but less than 1 year....................... .125%
From 1 year but less than 18 months ..................... .150
From 18 months but less then 2 years .................... .200
From 2 years but less than 3 years ...................... .250
From 3 years but less than 4 years ...................... .350
From 4 years but less than 5 years ...................... .450
From 5 years but less than 6 years ...................... .500
From 6 years but less than 7 years ...................... .550
From 7 years but less than 10 years ..................... .600
From 10 years but less than 15 years .................... .625
From 15 years but less than 20 years .................... .700
From 20 years to 30 years ............................... .750
<PAGE> 26
EXHIBIT I
FORM OF OFFICER'S CERTIFICATE
NORWEST FINANCIAL, INC.
The undersigned, DENNIS E. YOUNG, Senior Vice President and Treasurer,
and ROBERT W. BETTLE, Vice President and Controller, of Norwest Financial,
Inc., an Iowa corporation (the "Company"), pursuant to Section 5(b) of the
Distribution Agreement dated as of November 8, 1994 (the "Distribution
Agreement") among the Company and Merrill Lynch & Co., Merrill Lynch, Pierce,
Fenner & Smith Incorporated; Bear, Stearns & Co. Inc.; Donaldson, Lufkin &
Jenrette Securities Corporation; PaineWebber Incorporated; and Salomon Brothers
Inc, hereby certify that, to the best of our knowledge, after reasonable
investigation:
1. Since ___________________, 19___, there has been no material
adverse change in the condition, financial or otherwise, of the Company and its
subsidiaries considered as one enterprise, or the earnings, business affairs or
business prospects of the Company and its subsidiaries considered as one
enterprise, whether or not arising in the ordinary course of business other
than as contemplated or set forth in the prospectus (the "Prospectus")
contained in the registration statement (File No. 33-52157) relating to the
Company's Medium-Term Notes (the "Registration Statement");
2. The representations and warranties of the Company contained in
Section 2 of the Distribution Agreement are true and correct with the same
force and effect as though expressly made at and as of the date hereof;
3. The Company has performed or complied with all agreements and
satisfied all conditions on its part to be performed or satisfied at or prior
to the date hereof; and
4. No stop order suspending the effectiveness of the Registration
Statement has been issued and no proceeding for that purpose has been initiated
or threatened by the Securities and Exchange Commission.
IN WITNESS WHEREOF, we have hereunto signed our names and affixed the
seal of the Company.
Dated: , 19
--------------- ---- -----------------------------------------
Senior Vice President and Treasurer
[SEAL]
-----------------------------------------
Vice President and Controller
I-1
<PAGE> 27
EXHIBIT II
(1) They are independent certified public accountants with respect to the
Company and its subsidiaries within the meaning of the 1933 Act and the 1934
Act and the respective applicable published rules and regulations thereunder.
(2) In their opinion, the audited financial statements included or
incorporated by reference in the Registration Statement and the Prospectus and
reported on by them comply as to form in all material respects with the
applicable accounting requirements of the 1934 Act and the published rules and
regulations thereunder.
Include the following clauses modified appropriately in light of each of
the documents incorporated by reference in the Prospectus and any interim
results contained in the Prospectus.
(3) On the basis of procedures referred to in such letter, including a
reading of the latest available interim financial statements of the Company and
inquiries of officials of the Company responsible for financial and accounting
matters, nothing came to their attention which caused them to believe that:
(a) at the date of the latest available interim unaudited statement
of consolidated financial position of the Company, there were any
changes in the capital stock or long-term debt, except for scheduled
redemptions of long-term debt, or any decreases in consolidated
finance receivables -- net, total assets or stockholder's equity of
the Company and its subsidiaries on a consolidated basis, as compared
with the amounts shown on the December 31, 1993 audited consolidated
balance sheet included in the Company's Annual Report on Form 10-K for
the fiscal year ended December 31, 1993 and incorporated by reference
in the Prospectus,
(b) for the period from January 1, 1994 to September 30, 1994, there
were any decreases, as compared with the corresponding period in the
preceding year, in total income, net earnings or the ratio of earnings
to fixed charges of the Company and its subsidiaries, or
(c) at a specified date not more than five business days prior to the
date of such letter, there were any changes in the capital stock or
long-term debt, except for scheduled redemptions of long-term debt, or
any decrease in stockholder's equity of the Company and its
subsidiaries on a consolidated basis, as compared with the amounts
shown on the latest available unaudited consolidated balance sheet of
the Company, except in all cases for changes or decreases set forth in
such letter, in which case the letter shall be accompanied by an
explanation by the Company as to the significance thereof unless said
explanation is not deemed necessary by you.
II-1
<PAGE> 28
(4) In addition to their examination referred to in their report
incorporated by reference in the Registration Statement and the Prospectus and
the procedures referred to in (3) above, they have performed certain other
specified procedures as a result of which they determined that certain
information of an accounting, financial or statistical nature (which is limited
to accounting, financial or statistical information derived from the general
accounting records of the Company) incorporated by reference in the
Registration Statement and the Prospectus and appearing in the Prospectus or
incorporated documents under the captions "BUSINESS - CONSUMER FINANCE
OPERATIONS - Growth and Volume of Consumer Finance Receivables, - Regulation,
- - Business Methods, - Loss Experience, - Insurance Operations," "COMMERCIAL
FINANCE OPERATIONS - Loss Experience," "SOURCES OF FUNDS", "MANAGEMENT'S
DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS", and
in Exhibit 12 to the Registration Statement agrees with the accounting records
of the Company and its subsidiaries, excluding any questions of legal
interpretation.
II-2
<PAGE> 29
EXHIBIT III
MERRILL LYNCH & CO.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
Merrill Lynch World Headquarters
North Tower - 23rd Floor
World Financial Center
New York, New York 10281-1323
Bear, Stearns & Co. Inc.
245 Park Avenue
New York, New York, 10167
Donaldson, Lufkin & Jenrette
Securities Corporation
140 Broadway
New York, New York 10005
PaineWebber Incorporated
1285 Avenue of the Americas
New York, New York 10019
and
Salomon Brothers Inc
7 World Trade Center
New York, New York 10048
Re: Norwest Financial, Inc. Medium-Term Notes, Series A
Dear Sirs:
I have delivered an opinion to you dated November 8, 1994
as counsel to Norwest Financial, Inc. (the "Company"), pursuant to
Section 5(a) of the Distribution Agreement, dated as of November 8,
1994 between the Company and each of you, as Agent. You may continue
to rely upon such opinion as if it were dated as of this date except
that all statements and opinions contained therein shall be deemed to
relate to the Registration Statement and Prospectus as amended and
supplemented to this date.
This letter is delivered to you pursuant to Section 7(c) of the
Distribution Agreement.
Very truly yours,
<PAGE> 1
EXHIBIT 4.1
IF INDICATED ON THE FACE HEREOF THAT THIS NOTE IS GLOBAL SECURITY, IT IS
EXCHANGEABLE FOR NOTES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE
DEPOSITORY OR ITS NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES HEREINAFTER
DESCRIBED AND MAY NOT BE TRANSFERRED UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE
OR IN PART FOR SECURITIES IN DEFINITIVE FORM AND EXCEPT AS A WHOLE BY THE
DEPOSITORY TO A NOMINEE OF THE DEPOSITORY OR BY A NOMINEE OF THE DEPOSITORY TO
THE DEPOSITORY OR ANOTHER NOMINEE OF THE DEPOSITORY OR BY THE DEPOSITORY OR A
NOMINEE OF THE DEPOSITORY TO A SUCCESSOR OF THE DEPOSITORY OR A NOMINEE OF SUCH
SUCCESSOR DEPOSITORY.
In addition, if indicated on the face hereof that this Note is a Global
Security, unless this Note is presented by an authorized representative of The
Depository Trust Company (55 Water Street, New York, New York) to the issuer or
its agents for registration of transfer, exchange or payment, and any
certificate issued is registered in the name of Cede & Co. or such other name
as requested by an authorized representative of The Depository Trust Company
and any payment is made to Cede & Co., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF
FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL since the registered
owner hereof, Cede & Co., has an interest herein.
REGISTERED REGISTERED
NUMBER: PRINCIPAL AMOUNT: $_____________
CUSIP:
NORWEST FINANCIAL, INC.
SENIOR MEDIUM-TERM NOTE, SERIES B
IF APPLICABLE, THE "TOTAL AMOUNT OF OID," "YIELD TO MATURITY" AND "INITIAL
ACCRUAL PERIOD OID" (COMPUTED UNDER THE DESIGNATED METHOD) BELOW WILL BE
COMPLETED SOLELY FOR THE PURPOSES OF APPLYING THE FEDERAL INCOME TAX ORIGINAL
ISSUE DISCOUNT ("OID") RULES.
Floating Rate Note / / or ____% Fixed Rate Note / /
Original Issue Date:
Interest Accrual Date:
Maturity Date:
Issue Price:
Redemption Date(s):
Redemption Price(s):
Other Provisions:
Repayment Date(s):
Repayment Price(s):
Interest Payment Period:
Interest Payment Dates:
Total Amount of OID:
<PAGE> 2
Yield to Maturity:
Initial Accrual Period OID:
Method Used to Determine
Yield to Maturity and Initial
Accrual Period OID:
Original Issue Discount Global Security:
Note:
/ / Yes / / No
/ / Yes / / No
(Only applicable if this is a Floating Rate Note):
Initial Interest Rate:
Index Maturity:
Base Rate:
[Designated CMT Telerate Page:]
Interest Reset Period:
Interest Reset Dates:
Spread (plus or minus):
Spread Multiplier:
Maximum Interest Rate:
Minimum Interest Rate:
REGISTERED OWNER:
PRINCIPAL AMOUNT: $_________
NORWEST FINANCIAL, INC., a corporation duly organized and existing
under the laws of the State of Iowa (the "Company"), for value received, hereby
promises to pay to the Registered Owner identified above (the "Registered
Owner"), or registered assigns, the "Principal Amount," as set forth above, on
the "Maturity Date," as set forth above, and to pay interest thereon as
described herein.
The principal of (and premium, if any) and interest on this Note are
payable by the Company as specified above.
REFERENCE IS HEREBY MADE TO THE FURTHER PROVISIONS OF THIS NOTE SET
FORTH IN FULL BELOW, WHICH FURTHER PROVISIONS SHALL FOR ALL PURPOSES HAVE THE
SAME EFFECT AS IF SET FORTH IN FULL AT THIS PLACE.
Unless the certificate of authentication hereon has been manually
executed by or on behalf of the Trustee under the Indenture, this Note shall
not be entitled to any benefit under the Indenture or be valid or obligatory
for any purpose.
2
<PAGE> 3
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated:
NORWEST FINANCIAL, INC.
By:____________________
Attest and Countersign:
[Corporate Seal] _______________________
TRUSTEE'S CERTIFICATE OF
AUTHENTICATION
This is one of the Securities, of
the series designated herein,
issued under the within-
mentioned Indenture
THE FIRST NATIONAL BANK OF CHICAGO,
as Trustee
By:____________________
Authorized Officer
3
<PAGE> 4
1. This Note is one of a duly authorized issue of debt securities
of the Company (herein called the "Securities"), issued and to be issued in one
or more series under an Indenture, dated as of November 1, 1991 (as
supplemented and amended, and as it may be supplemented and amended from time
to time, the "Indenture"), between the Company and The First National Bank of
Chicago, as Trustee (herein called the "Trustee", which term includes any
successor trustee under the Indenture), to which Indenture and all Indentures
supplemental thereto reference is hereby made for a statement of the respective
rights, limitations of rights, duties and immunities thereunder of the Company,
the Trustee and the Holders of the Securities and of the terms upon which the
Securities are, and are to be, authenticated and delivered. This Note is one
of a series designated as Medium-Term Notes, Series B of the Company (herein
called the "Notes"). The Notes are limited (except as otherwise provided in
the Indenture) to the aggregate principal amount established from time to time
by the Board of Directors of the Company. The Notes may be issued at various
times with different maturity dates and different principal redemption
provisions, may bear interest at different rates, and may otherwise vary, all
as provided in the Indenture.
2. A. The "Record Date" pertaining to any Interest Payment Date
(as defined below) shall mean (a) with respect to Fixed Rate Notes, the first
day of the calendar month if such Interest Payment Date is the fifteenth day of
the calendar month or the fifteenth day of the calendar month preceding such
Interest Payment Date if such Interest Payment Date is the first day of the
calendar month, in each case whether or not such date shall be a Business Day
(as defined below) and (b) with respect to Floating Rate Notes, the fifteenth
day preceding each Interest Payment Date, whether or not such date shall be a
Business Day. Interest which is payable, and punctually paid or duly provided
for on any Interest Payment Date shall be paid to the Person in whose name the
Note is registered at the close of business on the Record Date next preceding
such Interest Payment Date; provided, however, that interest payable at
Maturity or upon earlier redemption or repayment will be to the Person to whom
principal shall be payable; provided, further, that the first payment of
interest on any Note originally issued between a Record Date and an Interest
Payment Date or on an Interest Payment Date will be made on the Interest
Payment Date following the next succeeding Record Date to the Registered Owner
on such next succeeding Record Date. "Business Day" means any day, other than
a Saturday or Sunday, that meets each of the following applicable requirements:
the day is (a) not a day on which banking institutions are authorized or
required by law, regulation or executive order to be closed in The City of New
York or Chicago, (b) with respect to LIBOR Notes, a London Banking Day.
"London Banking Day" means any day on which dealings in deposits in U.S.
Dollars are transacted in the London interbank market. All percentages
resulting from calculations will be rounded, if necessary, to the nearest one
hundred-thousandth of a percentage
4
<PAGE> 5
point, with five one-millionths of a percentage point being rounded-upwards,
and all currency or currency unit amounts used and resulting from such
calculations on the Notes will be rounded to the nearest one-hundredth of a
unit (with .005 of a unit being rounded upwards).
Interest payments in respect of the Notes will equal the amount of
interest accrued from and including the immediately preceding Interest Payment
Date in respect of which interest has been paid or duly made available for
payment (or from and including the Original Issue Date, if no interest has been
paid with respect to the applicable Note) to but excluding the related Interest
Payment Date or the Maturity Date (or date of redemption or repayment), as the
case may be.
B. If this is a "Fixed Rate Note" as indicated on the face hereof, the
Company promises to pay interest on the Principal Amount stated on the face
hereof at the rate per annum shown on the face hereof until such Principal
Amount is paid or made available for payment. The Company will pay interest
semi-annually each April 1 and October 1 or, if specified on the face hereof,
such other dates (the date on which interest will be payable, each an "Interest
Payment Date"), commencing with the Interest Payment Date immediately following
the Original Issue Date shown on the face hereof (the "Original Issue Date")
(subject to the last proviso in the second sentence of Section 2.A hereof) and
at Maturity or upon earlier redemption or repayment. Interest will accrue from
and including the most recent Interest Payment Date or, if no interest has been
paid or duly provided for, from and including the Original Issue Date, in each
case, to but excluding the Interest Payment Date. The amount of such interest
payable on any Interest Payment Date shall be computed on the basis of a
360-day year of twelve 30-day months. If any Interest Payment Date or the
Maturity Date (or date of redemption or repayment) of this Note falls on a day
that is not a Business Day, the required payment of principal, premium, if any,
and/or interest will be made on the next succeeding Business Day as if made on
the date such payment was due, and no interest will accrue on such payment for
the period from and after such Interest Payment Date or the Maturity Date (or
date of redemption or repayment), as the case may be, to the date of such
payment on the next succeeding Business Day.
C. If this is a "Floating Rate Note" as indicated on the face hereof,
the Company promises to pay interest on the Principal Amount stated on the face
hereof at the rate per annum equal to the Initial Interest Rate shown on the
face hereof (an "Initial Interest Rate") until the first Interest Reset Date
shown on the face hereof following the Original Issue Date specified on the
face hereof (an "Interest Reset Date") and thereafter at a rate determined in
accordance with the provisions below under the heading "Determination of CD
Rate," "Determination of Commercial Paper Rate," "Determination of Federal
Funds Rate," "Determination of LIBOR," "Determination of
5
<PAGE> 6
Prime Rate", "Determination of CMT Rate" or "Determination of Treasury Rate"
depending upon whether the Base Rate specified on the face hereof (the "Base
Rate") is CD Rate, Commercial Paper Rate, Federal Funds Rate, LIBOR, Prime
Rate, CMT Rate or Treasury Rate, respectively, until the Principal Amount
stated on the face hereof is paid or duly made available for payment. The
Company will pay interest monthly, quarterly, semi-annually or annually as
specified on the face hereof under "Interest Payment Period", commencing with
the first Interest Payment Date specified on the face hereof next succeeding
the Original Issue Date (subject to the last proviso in second sentence of
Section 2.A hereof), and at Maturity or upon earlier redemption or repayment.
Unless otherwise provided on the face hereof, the dates on which interest will
be payable will be, in the case of Notes with a monthly Interest Payment
Period, the third Wednesday of each month; in the case of Notes with a
quarterly Interest Payment Period, the third Wednesday of March, June,
September and December; in the case of Notes with a semi-annual Interest
Payment Period, the third Wednesday of the two months specified on the face
hereof; and in the case of Notes with an annual Interest Payment Period, the
third Wednesday of the month specified on the face hereof; provided, however,
that if an Interest Payment Date would fall on a day that is not a Business
Day, such Interest Payment Date shall be postponed to the next day that is a
Business Day, except that in case the Base Rate is LIBOR, as specified on the
face hereof, if such date falls in the next calendar month, such Interest
Payment Date shall be the immediately preceding Business Day; provided,
further, that if the Maturity Date (or date of redemption or repayment) of this
Note falls on a day that is not a Business Day, the required payment of
principal, premium, if any, and/or interest will be made on the next succeeding
Business Day as if made on the date such payment was due, and no interest will
accrue on such payment for the period from and after the Maturity Date (or date
of redemption or repayment), as the case may be, to the date of such payment on
the next succeeding Business Day.
The interest payable on a Floating Rate Note on each Interest Payment
Date will include accrued interest from and including the Original Issue Date
or from and including the last date in respect of which interest has been paid,
as the case may be, to but excluding such Interest Payment Date, Maturity Date
or date of redemption or repayment, as the case may be. Such accrued interest
will be calculated by multiplying the principal amount hereof by an accrued
interest factor. This accrued interest factor shall be computed by adding the
interest factors calculated for each day in the period for which accrued
interest is being calculated. The interest factor (expressed as a decimal) for
each such day shall be computed by dividing the interest rate applicable to
such day by 360 if the Base Rate is CD Rate, Commercial Paper Rate, Federal
Funds Rate, LIBOR or Prime Rate, as indicated on the face hereof, or by the
actual number of days in the year if the Base Rate is CMT Rate or Treasury
Rate, as indicated on the face hereof. The interest
6
<PAGE> 7
rate in effect on each day will be (a) if such day is an Interest Reset Date,
the interest rate with respect to the Interest Determination Date (as defined
below) pertaining to such Interest Reset Date or (b) if such day is not an
Interest Reset Date, the interest rate with respect to the Interest
Determination Date pertaining to the next preceding Interest Reset Date;
provided, however, that the interest rate in effect from the Original Issue
Date to the first Interest Reset Date will be the Initial Interest Rate.
Notwithstanding the foregoing, the interest rate shall not be greater than the
"Maximum Interest Rate", if any, or less than the "Minimum Interest Rate", if
any, shown on the face hereof. In addition, the interest rate shall in no
event be higher than the maximum rate, if any, permitted by New York law, as
the same may be modified by United States law of general application.
Commencing with the first Interest Reset Date specified on the face hereof
following the Original Issue Date and thereafter upon each succeeding Interest
Reset Date specified on the face hereof, the rate at which interest on a
Floating Rate Note is payable shall be adjusted as provided herein; provided,
however, that if any Interest Reset Date would otherwise be a day that is not a
Business Day, such Interest Reset Date shall be postponed to the next day that
is a Business Day, except that (i) if the Base Rate is LIBOR and such Business
Day is in the next succeeding calendar month, such Interest Reset Date shall be
the immediately preceding Business Day or (ii) if the Base Rate is Treasury
Rate and the Interest Reset Date falls on a date which is an auction date, the
Interest Reset Date shall be the following day that is a Business Day.
The "Interest Determination Date" pertaining to an Interest Reset Date
will be, if the Base Rate is CD Rate, Commercial Paper Rate, Federal Funds
Rate, CMT Rate or Prime Rate, the second Business Day next preceding such
Interest Reset Date. The "Interest Determination Date" pertaining to an
Interest Reset Date will be, if the Base Rate is LIBOR, the second London
Banking Day next preceding such Interest Reset Date. The "Interest
Determination Date" pertaining to an Interest Reset Date will be, if the Base
Rate is Treasury Rate, the day of the week in which such Interest Reset Date
falls on which Treasury bills (as defined below) of the Index Maturity
specified on the face hereof are auctioned (the "Index Maturity"). Treasury
bills are normally auctioned on Monday of each week, unless that day is a legal
holiday, in which case the auction is normally held on the following Tuesday,
except that such auction may be held on the preceding Friday. If, as a result
of a legal holiday, an auction is so held on the preceding Friday, such Friday
will be the Interest Determination Date pertaining to the Interest Reset Date
occurring in the next succeeding week.
Subject to applicable provisions of law and except as specified herein,
on each Interest Reset Date the rate of interest shall be the rate determined
in accordance with the provisions of the applicable heading below.
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<PAGE> 8
Determination of CD Rate. If the Base Rate is CD Rate, as indicated on
the face hereof, the interest rate shall equal (a) the rate on the applicable
Interest Determination Date for negotiable certificates of deposit having the
Index Maturity specified on the face hereof (1) as published by the Board of
Governors of the Federal Reserve System in "Statistical Release H.15(519)
Selected Interest Rates" or any successor publication of the Board of Governors
of the Federal Reserve System ("H.15(519)"), under the heading "CDs (Secondary
Market)" or (2) if such rate is not so published by 9:00 A.M., New York City
time, on the Calculation Date (as defined below) pertaining to such Interest
Determination Date, then as published by the Federal Reserve Bank of New York
in its daily statistical release "Composite 3:30 P.M. Quotations for U.S.
Government Securities" (the "Composite Quotations") under the heading
"Certificates of Deposit" or (b) if neither of such rates is published by 3:00
P.M., New York City time, on such Calculation Date, the arithmetic mean (as
calculated by the Calculation Agent (as defined below)) of the secondary market
offered rates as of 10:00 A.M., New York City time, on such Interest
Determination Date of three leading non-bank dealers in negotiable U.S. Dollar
certificates of deposit in The City of New York selected by the Calculation
Agent, for negotiable certificates of deposit of major United States money
center banks of the highest credit standing (in the market for negotiable
certificates of deposit) with a remaining maturity closest to the Index
Maturity (as specified on the face hereof) in a denomination of $5,000,000, in
each of the above cases adjusted by the addition or subtraction of the Spread,
if any, specified on the face hereof (the "Spread"), or by multiplication by
the Spread Multiplier, if any, specified on the face hereof (the "Spread
Multiplier"); provided, however, that if such dealers are not quoting as
mentioned above, the interest rate in effect hereon until the Interest Reset
Date next succeeding the Interest Reset Date to which such Interest
Determination Date relates shall be the same as the rate for the immediately
preceding Interest Reset Period (or, if there was no such Interest Reset
Period, the Initial Interest Rate).
Determination of Commercial Paper Rate. If the Base Rate is Commercial
Paper Rate, as indicated on the face hereof, the interest rate shall equal (a)
the Money Market Yield (as defined herein) on the applicable Interest
Determination Date of the rate for commercial paper having the Index Maturity
specified on the face hereof (1) as published in H.15(519), under the heading
"Commercial Paper", or (2) if such yield is not so published by 9:00 A.M., New
York City time, on the Calculation Date pertaining to such Interest
Determination Date, then as published in the Composite Quotations under the
heading "Commercial Paper" or (b) if neither of such yields is published by
3:00 P.M., New York City time, on such Calculation Date, the Money Market Yield
of the arithmetic mean (as calculated by the Calculation Agent) of the offered
rates, as of 11:00 A.M., New York City time on such Interest Determination
Date, of three leading dealers of commercial paper in The City of New York,
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<PAGE> 9
selected by the Calculation Agent, for commercial paper of the Index Maturity
specified on the face hereof placed for an industrial issuer whose bond rating
is "AA", or the equivalent, from a nationally recognized rating agency, in each
of the above cases adjusted by the addition or subtraction of the Spread, if
any, specified on the face hereof, or by multiplication by the Spread
Multiplier, if any, specified on the face hereof; provided, however, that if
such dealers are not quoting as mentioned above, the interest rate in effect
hereon until the Interest Reset Date next succeeding the Interest Reset Date to
which such Interest Determination Date relates shall be the same as the rate
for the immediately preceding Interest Reset Period (or, if there was no such
Interest Reset Period, the Initial Interest Rate).
"Money Market Yield" shall be the yield calculated in accordance with
the following formula:
Money Market Yield = D x 360 x 100
360 - (D x M)
where "D" refers to the per annum rate for commercial paper quoted on a bank
discount basis and expressed as a decimal; and "M" refers to the actual number
of days in the interest period for which interest is being calculated.
Determination of Federal Funds Rate. If the Base Rate is Federal Funds
Rate, as indicated on the face hereof, the interest rate shall equal (a) the
rate on the applicable Interest Determination Date for Federal Funds (1) as
published in H.15(519), under the heading "Federal Funds (Effective)" or (2) if
such rate is not so published by 9:00 A.M., New York City time, on the
Calculation Date pertaining to such Interest Determination Date, then as
published in the Composite Quotations under the heading "Federal
Funds/Effective Rate" or (b) if neither of such rates is published by 3:00
P.M., New York City time, on such Calculation Date, the arithmetic mean (as
calculated by the Calculation Agent) of the rates for the last transaction in
overnight Federal Funds arranged by three leading brokers of Federal Funds
transactions in New York City, selected by the Calculation Agent, as of 9:00
A.M., New York City time on such Interest Determination Date, in each of the
above cases adjusted by the addition or subtraction of the Spread, if any,
specified on the face hereof, or by multiplication by the Spread Multiplier, if
any, specified on the face hereof; provided, however, that if such brokers are
not quoting as mentioned above, the interest rate in effect hereon until the
Interest Reset Date next succeeding the Interest Reset Date to which such
Interest Determination Date relates shall be the same as the rate for the
immediately preceding Interest Reset Period (or, if there was no such Interest
Reset Period, the Initial Interest Rate).
Determination of LIBOR. If the Base Rate is LIBOR, as indicated on the
face hereof, the interest rate shall equal
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<PAGE> 10
LIBOR, adjusted by the addition or subtraction of the Spread, if any, specified
on the face hereof, or by multiplication by the Spread Multiplier, if any,
specified on the face hereof.
"LIBOR" will be determined by the Calculation Agent in accordance with
the following provisions:
(i) LIBOR for any Interest Determination Date will be
determined as follows: (A) if LIBOR is specified on the face hereof to
be "LIBOR-Reuters", LIBOR will be determined on the basis of the
offered rates for deposits in U.S. dollars having the Index Maturity
specified on the face hereof, commencing on the second London Banking
Day immediately following such Interest Determination Date, which
appear on the Reuters Screen LIBO Page as of 11:00 a.m., London time,
on such Interest Determination Date (if at least two such offered rates
appear on the Reuters Screen LIBO Page, the rate in respect of such
Interest Determination Date will be the arithmetic mean of such offered
rates as determined by the Calculation Agent), or (B) if LIBOR is
specified on the face hereof to be "LIBOR-Telerate" or "LIBOR", LIBOR
for such Interest Determination Date will be the rate for deposits in
U.S. dollars having the Index Maturity specified on the face hereof
which appears on the Telerate Page 3750 or such other page as may
replace Telerate Page 3750 on that service for the purpose of
displaying London interbank offered rates of major banks (the "Telerate
Page") as of 11:00 A.M., London time, on such Interest Determination
Date. If fewer than two offered rates appear, in the case of
alternative (A) above, or if such rate does not appear on the Telerate
Page, in the case of alternative (B) above, the rate for such Interest
Determination Date will be determined as if the rate had been specified
as described in (ii) below.
(ii) With respect to an Interest Determination Date on
which fewer than two offered rates appear on the Reuters Screen LIBO
Page or if the rate for deposits does not appear on the Telerate Page
as applicable and as specified in (i) above, LIBOR will be determined
on the basis of the rates at which deposits in U.S. dollars are offered
by four major banks in the London interbank market selected by the
Calculation Agent at approximately 11:00 a.m., London time, on such
Interest Determination Date to prime banks in the London interbank
market having the Index Maturity specified on the face hereof
commencing on the second London Banking Day immediately following such
Interest Determination Date and in a principal amount equal to an
amount of not less than U.S. $1,000,000 that is representative for a
single transaction in such market at such time. The Calculation Agent
will request the principal London
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<PAGE> 11
office of each of such banks to provide a quotation of its rate.
If at least two such quotations are provided, LIBOR in respect of such
Interest Determination Date will be the arithmetic mean of such
quotations. If fewer than two quotations are provided, LIBOR in
respect of such Interest Determination Date will be the arithmetic mean
of the rates quoted by three major banks in The City of New York
selected by the Calculation Agent at approximately 11:00 a.m., New York
time, on such Interest Determination Date for loans in U.S. dollars to
leading European banks, having the Index Maturity specified on the face
hereof commencing on the second London Banking Day immediately
following such Interest Determination Date and in a principal amount
equal to an amount of not less than U.S. $1,000,000 that is
representative for a single transaction in such market at such time;
provided, however, that if the banks selected as aforesaid by the
Calculation Agent are not quoting as mentioned in this sentence, LIBOR
for the applicable period will be the same as LIBOR for the immediately
preceding Interest Reset Period (or, if there was no such Interest
Reset Period, the Initial Interest Rate).
"Reuters Screen LIBO Page" means the display designated as page "LIBO"
on the Reuters Monitor Money Rates Service (or such other page as may replace
the LIBO page on that service for the purpose of displaying London interbank
offered rates of major banks).
Determination of Treasury Rate. If the Base Rate is Treasury Rate, as
indicated on the face hereof, the interest rate shall equal the rate for the
auction held on the applicable Interest Determination Date of direct
obligations of the United States ("Treasury bills") having the Index Maturity
shown on the face hereof as published in H.15(519) under the heading "U.S.
Government Securities -- Treasury bills -- auction average (investment)" or, if
not so published by 9:00 A.M., New York City time, on the Calculation Date
pertaining to such Interest Determination Date, the auction average rate
(expressed as a bond equivalent on the basis of a year of 365 or 366 days, as
applicable, and applied on a daily basis) as otherwise announced by the United
States Department of the Treasury, in either case, adjusted by the addition or
subtraction of the Spread, if any, specified on the face hereof, or by
multiplication by the Spread Multiplier, if any, specified on the face hereof.
In the event that the results of the auction of Treasury bills having the Index
Maturity shown on the face hereof are not published or reported as provided
above by 3:00 P.M., New York City time, on such Calculation Date or if no such
auction is held in a particular week, then the rate of interest hereon shall be
calculated by the Calculation Agent and shall be a yield to Maturity (expressed
as a bond equivalent on the basis of a year of 365 or 366 days, as applicable,
and applied on a daily basis)
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<PAGE> 12
of the arithmetic mean of the secondary market bid rates, as of approximately
3:30 P.M., New York City time on such Interest Determination Date, of three
leading primary United States government securities dealers, selected by the
Calculation Agent, for the issue of Treasury bills with a remaining maturity
closest to the Index Maturity shown on the face hereof, adjusted by the
addition or subtraction of the Spread, if any, specified on the face hereof, or
by multiplication by the Spread Multiplier, if any, specified on the face
hereof; provided, however, that if the dealers selected as aforesaid by the
Calculation Agent are not quoting as mentioned in this sentence, the interest
rate in effect hereon until the Interest Reset Date next succeeding the
Interest Reset Date to which such Interest Determination Date relates shall be
the same as the rate for the immediately preceding Interest Reset Period (or,
if there was no such Interest Reset Period, the Initial Interest Rate).
Determination of CMT Rate. If the Base Rate is CMT Rate, as indicated
on the face hereof, the interest rate shall equal the CMT Rate adjusted by the
addition or subtraction of the Spread, if any, specified on the face hereof, or
by multiplication by the Spread Multiplier, if any, specified on the face
hereof.
"CMT Rate" shall mean, with respect to any Interest Determination Date,
the rate displayed on the Designated CMT Telerate Page under the caption "
...Treasury Constant Maturities...Federal Reserve Board Release H.15...Mondays
Approximately 3:45 P.M.," under the column for the Index Maturity specified on
the face hereof for (i) if the Designated CMT Telerate Page is 7055, the rate
on such Interest Determination Date and (ii) if the Designated CMT Telerate
Page is 7052, the week or the month, as applicable, ended immediately preceding
the week in which the related Interest Determination Date occurs. If such rate
is no longer displayed on the relevant page, or if not displayed by 3:00 P.M.,
New York City time, on the related Calculation Date, then the CMT Rate for such
Interest Determination Date will be such treasury constant maturity rate for
the Index Maturity specified on the face hereof (or other United States
Treasury rate for such Index Maturity) for the Interest Determination Date with
respect to such Interest Reset Date as may then be published by either the
Board of Governors of the Federal Reserve System or the United States
Department of the Treasury that the Calculation Agent determines to be
comparable to the rate formerly displayed on the Designated CMT Telerate Page
and published in the relevant H.15(519). If such information is not provided
by 3:00 P.M., New York City Time, on the related Calculation Date, then the CMT
Rate for the Interest Determination will be calculated by the Calculation Agent
and will be a yield to maturity, based on the arithmetic mean of the secondary
market closing offer side prices as of approximately 3:30 P.M., New York City
time, on the Interest Determination Date reported, according to their written
records, by three leading primary United States government securities dealers
(each, a
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<PAGE> 13
"Reference Dealer") in The City of New York (which may include the Agents or
their respective affiliates) selected by the Calculation Agent (from five such
Reference Dealers selected by the Calculation Agent and eliminating the highest
quotation (or, in the event of equality, one of the highest) and the lowest
quotation (or, in the event of equality, one of the lowest)), for the most
recently issued direct noncallable fixed rate obligations of the United States
("Treasury Notes") with an original maturity of approximately the Index
Maturity specified on the face hereof and a remaining term to maturity of not
less than such Index Maturity minus one year. If the Calculation Agent cannot
obtain three such Treasury Note quotations, the CMT Rate for such Interest
Determination Date will be calculated by the Calculation Agent and will be a
yield to maturity based on the arithmetic mean of the secondary market offer
side prices as of approximately 3:30 P.M., New York City time, on the Interest
Determination Date of three Reference Dealers in The City of New York (from
five such Reference Dealers selected by the Calculation Agent and eliminating
the highest quotation (or, in the event of equality, one of the highest) and
the lowest quotation (or, in the event of equality, one of the lowest)), for
Treasury Notes with an original maturity of the Number of years that is the
next highest to the Index Maturity specified on the face hereof and a remaining
term to maturity closest to such Index Maturity and in an amount of at least
$100,000,000. If three or four (and not five) of such Reference Dealers are
quoting as described above, then the CMT Rate will be based on the arithmetic
mean of the offer prices obtained and neither the highest nor the lowest of
such quotes will be eliminated; provided, however, that if fewer than three
Reference Dealers selected by the Calculation Agent are quoting as described
herein, the CMT Rate will be the CMT Rate in effect on such Interest
Determination Date. If two Treasury Notes with an original maturity as
described in the third preceding sentence have remaining terms to maturity
equally close to such Index Maturity, the quotes for the Treasury Note with the
shorter remaining term to maturity will be used.
"Designated CMT Telerate Page" means the display on the Dow Jones
Telerate Service on the page designated on the face hereof (or any other page
as may replace such page on that service, for the purpose of displaying
Treasury Constant Maturities as reported in H.15(519)). If no such page is
designated, the Designated CMT Telerate Page shall be 7052, for the most recent
week.
Determination of Prime Rate. If the Base Rate is Prime Rate, as
indicated on the face hereof, the interest rate shall equal (a) the arithmetic
mean of the prime rates quoted on the basis of the actual number of days in the
year divided by a 360 day year as of the close of business on such Interest
Determination Date furnished in The City of New York by any three money center
banks selected by the Calculation Agent, or (b) if fewer than two quotations
are provided, the Prime Rate shall be
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<PAGE> 14
determined on the basis of the rate or rates furnished in The City of New York
by any substitute bank or trust company organized and doing business under the
laws of the United States, or any State thereof, having total equity capital of
at least $500,000,000 and being subject to supervision or examination by
Federal or State authority, selected by the Calculation Agent to provide such
rate or rates, in each of the above cases adjusted by the addition or
subtraction of the Spread, if any, specified on the face hereof, or by
multiplication by the Spread Multiplier, if any, specified on the face hereof;
provided, however, that if the banks or trust companies selected as aforesaid
by the Calculation Agent are not quoting as mentioned in this sentence, the
interest rate in effect hereon until the Interest Reset Date next succeeding
the Interest Reset Date to which such Interest Determination Date relates shall
be the same as the rate for the immediately preceding Interest Reset Period
(or, if there was no such Interest Reset Period, the Initial Interest Rate).
The "Calculation Date" pertaining to any Interest Determination Date
shall be the earlier of (i) the tenth calendar day after such Interest
Determination Date or, if any such day is not a Business Day, the next
succeeding Business Day and (ii) the Business Day immediately preceding the
applicable Interest Payment Date or the Maturity Date (or date of redemption or
repayment) as the case may be. The "Calculation Agent" shall calculate the
interest rate hereon in accordance with the foregoing and will confirm in
writing such calculation to the Trustee and any Paying Agent immediately after
each determination. Neither the Trustee nor any Paying Agent shall be
responsible for any such calculation. At the request of the Holder hereof, the
Calculation Agent will provide the interest rate hereon then in effect and, if
determined, the interest rate which will become effective as of the next
Interest Reset Date.
3. Payments of interest, principal and premium, if any, on this
Note (other than at Maturity) will be payable at the Corporate Trust Office of
the Trustee or at the office or agency of the Company maintained for such
purposes in the Borough of Manhattan, The City of New York; provided, however,
that at the option of the Company payment of interest may be made by check
mailed to the Holder at the address appearing on the Securities Register on the
applicable Record Date. Notwithstanding the foregoing, the Company may at its
option elect to make payments by wire transfer of immediately available funds,
but only if appropriate payment instructions have been received in writing by
the Trustee not less than fifteen calendar days prior to the applicable
Interest Payment Date. Unless indicated on the face hereof that this Note is
a Global Security, the principal hereof and any premium and interest hereon
payable at Maturity will be paid in immediately available funds upon surrender
of this Note at the office or agency of the Company maintained for that purpose
in the Borough of Manhattan, The City of New York. If indicated on the face
hereof that this Note is a Global Security,
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<PAGE> 15
the principal hereof and any premium and interest due on any Interest Payment
Date or at Maturity or redemption will be made available to the Trustee on such
date. As soon as possible thereafter, the Trustee will make such payments to
the Depository (as defined below) in accordance with existing arrangements
between the Trustee and the Depository.
4. If specified on the face hereof, this Note may be redeemed, as a
whole or from time to time in part, at the option of the Company, on not less
than 30 nor more than 90 days prior notice given as provided in the Indenture,
on any Redemption Date(s) and at the related Redemption Price(s) set forth on
the face hereof. If less than all the Outstanding Notes of like tenor and
terms are to be redeemed, the particular Notes to be redeemed shall be selected
by the Trustee by such method as the Trustee shall deem fair and appropriate;
provided, however, that such selection shall be of principal amounts equal to
the minimum authorized denomination for such Notes or any integral multiple
thereof. The notice of such redemption shall specify which Notes are to be
redeemed. In the event of redemption of this Note in part only, a new Note or
Notes of this series of like tenor and terms for the unredeemed portion hereof
will be issued in the name of the Holder hereof upon the cancellation hereof.
The Notes of this series are not subject to any sinking fund.
5. If specified on the face hereof, this Note will be subject to
repayment at the option of the Holder hereof on the Repayment Date(s) and at
the Repayment Price(s) indicated on the face hereof. If no such Repayment Date
is set forth on the face hereof, this Note may not be so repaid at the option
of the Holder hereof prior to the Maturity Date. On each Repayment Date, if
any, this Note shall be repayable in whole or in part at the option of the
Holder hereof at the applicable Repayment Price set forth on the face hereof,
together with interest thereon to the date of repayment. For this Note to be
repaid in whole or in part at the option of the Holder hereof, the Trustee must
receive at its Corporate Trust Office in the City of New York or at the office
or agency of the Trustee maintained for such purposes in the Borough of
Manhattan, The City of New York, at least 15 days, but not more than 30 days,
prior to the specified Repayment Date (i) the Note with the form entitled
"Option to Elect Repayment" below duly completed or (ii) a telegram, telex,
facsimile transmission or letter from a member of a national securities
exchange or the National Association of Securities Dealers, Inc. or a
commercial bank or a trust company in the United States of America setting
forth the name of the Holder of the Note, the principal amount of the Note, the
certificate number of the Note or a description of the Note's tenor and terms,
the principal amount of the Note to be repaid (which shall not be less than the
minimum authorized denomination of this Note or an integral multiple thereof),
a statement that the option to elect repayment is being exercised thereby and a
guarantee that the Note to be repaid with the form entitled "Option to Elect
Repayment" on the Note duly completed will be received by the Trustee not later
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<PAGE> 16
than five Business Days after the date of such telegram, telex, facsimile
transmission or letter and such Note and form duly completed are received by
the Trustee by such fifth Business Day. Exercise of such repayment option
shall be irrevocable. Such option may be exercised by the Holder for less than
the entire principal amount provided that the principal amount remaining
outstanding after repayment, if any, is an authorized denomination. All
questions as to the validity, eligibility (including time of receipt) and
acceptance of any Note for repayment will be determined by the Company whose
determination will be final and binding.
6. If an Event of Default with respect to the Notes shall occur and
be continuing, the principal of all of the Notes may be declared due and
payable in the manner and with the effect provided in the Indenture. If this
Note is an Original Issue Discount Note (as specified on the face hereof) and
the principal hereof is declared to be due and payable immediately pursuant to
this Section or otherwise, the amount of principal due and payable with respect
to this Note shall be limited to the sum of the principal amount of this Note
multiplied by the Issue Price (expressed as a percentage of the aggregate
principal amount), plus the original issue discount accrued from the date of
issue to the date of declaration, which accrual shall be calculated using the
"interest method" (computed in accordance with generally accepted accounting
principles) in effect on the date of declaration.
7. The Indenture permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the rights and
obligations of the Company and the rights of the Holders of the Securities
under the Indenture at any time by the Company with the consent of the Holders
of more than fifty percent in aggregate principal amount of the Securities at
the time Outstanding, of each series to be affected thereby. The Indenture
also contains provisions permitting the Holders of specified percentages in
aggregate principal amount of the Securities of any series at the time
Outstanding, on behalf of the Holders of all the Securities of such series, to
waive compliance by the Company with certain provisions of the Indenture and
certain past defaults under the Indenture and their consequences with respect
to such series. Any such consent or waiver by the Holder of this Note shall be
conclusive and binding upon such Holder and upon all future Holders of this
Note and of any Note issued upon the transfer hereof or in exchange herefor or
in lieu hereof whether or not notation of such consent or waiver is made upon
this Note.
8. No reference herein to the Indenture and no provision of this
Note or of the Indenture shall alter or impair the obligation of the Company,
which is absolute and unconditional, to pay the principal of and interest on
this Note at the times, place and rate, and in the coin or currency, herein and
in the Indenture prescribed.
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<PAGE> 17
9. The Notes are issuable only in registered form without coupons.
The authorized denominations of Notes denominated in U.S. Dollars will be U.S.
$1,000 and/or any amount in excess thereof which is an integral multiple of
U.S. $1,000.
10. If not indicated on the face hereof that this Note is a Global
Security, as provided in the Indenture and subject to certain limitations
therein set forth and set forth on the face hereof, this Note is transferable
on the Securities Register of the Company, upon surrender of this Note for
registration of transfer at the office or agency of the Company to be
maintained for that purpose in the Borough of Manhattan, The City of New York,
or at any other office or agency of the Company maintained for that purpose,
duly endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Company and the Securities Registrar duly executed by the
Holder hereof or his attorney duly authorized in writing, and thereupon one or
more new Notes, of authorized denominations and for the same aggregate
principal amount, will be issued to the designated transferee or transferees.
As provided in the Indenture and subject to certain limitations therein set
forth, Notes are exchangeable for a like aggregate principal amount of Notes of
a like tenor and of a different authorized denomination, as requested by the
Holder surrendering the same. No service charge shall be made for any such
transfer or exchange, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge payable in connection with
registration of such transfer or exchange, other than certain exchanges not
involving any transfer. The Company, the Trustee and any agent of the Company
or the Trustee may treat the Person in whose name this Note is registered as
the owner hereof for the purpose of receiving payment as herein provided and
for all other purposes, whether or not this Note be overdue, and neither the
Company, the Trustee nor any such agent shall be affected by notice to the
contrary.
11. "Global Security" and "Global Securities" means a Security or
Securities evidencing all or a part of a series of Securities, issued to the
Depository (as hereinafter defined) for such Series or its nominee, and
registered in the name of such Depository or its nominee. "Depository" means,
with respect to the Securities of any series issuable or issued in whole or in
part in the form of one or more Global Securities, the person designated as the
Depository by the Company.
12. If indicated on the face hereof that this Note is a Global
Security, no holder of any beneficial interest in this Note held on its behalf
by a Depository or a nominee of such Depository shall have any rights under the
Indenture with respect to such Global Security, and such Depository or nominee
may be treated by the Company, the Trustee, and any agent of the Company or the
Trustee as the owner of such Global Security for all purposes whatsoever.
Notwithstanding the foregoing, nothing herein shall impair, as between a
Depository and such holders of
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<PAGE> 18
beneficial interests, the operation of customary practices governing the
exercise of the rights of the Depository as Holder of any Security.
13. If indicated on the face hereof that this Note is a Global
Security, it is exchangeable, in whole but not in part, for Notes registered in
the names of Persons other than the Depository or its nominee or in the name of
a successor to the Depository or a nominee of such successor Depository only if
(i) the Depository notifies the Company that it is unwilling or unable to
continue as Depository for this Note or if at any time such Depository ceases
to be a clearing agency registered under the Securities Exchange Act of 1934,
as amended, and, in either case, a successor depository is not appointed by the
Company within 90 days, (ii) the Company in its discretion at any time
determines not to have all of the Notes of this series represented by one or
more Global Security or Securities and notifies the Trustee thereof, or (iii)
an Event of Default has occurred and is continuing with respect to the Notes of
this series. If this Note is exchangeable pursuant to the preceding sentence,
it shall be exchangeable for Notes issuable in authorized denominations and
registered in such names as the Depository holding this Note shall direct.
Subject to the foregoing, if this Note is a Global Security it is not
exchangeable, except for a Note or Notes of the same aggregate denominations to
be registered in the name of such Depository or its nominee or in the name of a
successor to the Depository or a nominee of such successor depository.
14. No recourse shall be had for the payment of the principal of or
interest on this Note, or for any claim based hereon, or otherwise in respect
hereof, or based on or in respect of the Indenture or any indenture
supplemental thereto, against any incorporator, stockholder, officer or
director, as such, past, present or future, of the Company or any successor
company, whether by virtue of any constitution, statute or rule of law, or by
the enforcement of any assessment or penalty or otherwise, all such liability
being, by the acceptance hereof and as part of the consideration for the issue
hereof, expressly waived and released.
15. Unless otherwise defined herein, all terms used in this Note
which are defined in the Indenture shall have the meanings assigned to them in
the Indenture.
16. This Note, including without limitation the obligation of the
Company contained herein to pay the principal of and interest on this Note in
accordance with the terms hereof and of the Indenture, shall be construed in
accordance with and governed by the laws of the State of New York.
18
<PAGE> 19
OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably requests and instructs the Company
to repay this Note (or portion hereof specified below) pursuant to its terms at
a price equal to the applicable Repayment Price thereof together with accrued
and unpaid interest to the Repayment Date, to the undersigned at
________________________________________________________________________________
(PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS OF THE UNDERSIGNED)
For this Note to be repaid, the Company must receive this Note, with
this "Option to Elect Repayment" form duly completed, at the office or agency
of the Company set forth on the face hereof, at least 15 days but not more than
30 days, prior to the Repayment Date(s) (as set forth on the face hereof).
If less than the entire principal amount of this Note is to be repaid
(which shall not be less than the minimum authorized denominations of this
Note), specify the portion thereof which the Holder elects to have
repaid ; and specify the denomination or denominations
(which shall be in authorized denominations) of the Notes to be issued to
the Holder for the portion of this Note not being repaid (in the absence
of any such specification, one such Note will be issued for the portion
not being repaid):
_____________________________.
Date:____________________ _________________________________
NOTICE: The signature on this Option
to Elect Repayment must correspond
with the name as written upon the
face of this Note in every particular
without alteration or enlargement.
19
<PAGE> 20
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face
of this certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right of survivorship and not as tenants
in common
UNIF GIFT MIN ACT - _____________ Custodian _____________
(Cust) (Minor)
under Uniform Gifts
to Minors Act _____________
(State)
Additional abbreviations may also be used though not in the above list.
ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sells, assigns and transfers
unto [PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING
NUMBER OF ASSIGNEE] (PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS OF
TRANSFEREE) the within Note, and all rights thereunder, hereby irrevocably
constituting and appointing Attorney to transfer
said Note on the books of the Company, with full power of substitution in the
premises.
Date __________________________ __________________________
NOTICE: The signature to this
assignment must be guaranteed
by a commercial bank or trust
company in the continental
United States or by a firm or
corporation having membership
on any national securities
exchange or in the National
Association of Securities
Dealers, Inc., and must
correspond with the name as
written upon the face of the
within instrument in every
particular without alteration
or enlargement or any change
whatever.
20
<PAGE> 1
EXHIBIT 4.2
IF INDICATED ON THE FACE HEREOF THAT THIS NOTE IS A GLOBAL SECURITY, IT IS
EXCHANGEABLE FOR NOTES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE
DEPOSITORY OR ITS NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES HEREINAFTER
DESCRIBED AND MAY NOT BE TRANSFERRED UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE
OR IN PART FOR SECURITIES IN DEFINITIVE FORM AND EXCEPT AS A WHOLE BY THE
DEPOSITORY TO A NOMINEE OF THE DEPOSITORY OR BY A NOMINEE OF THE DEPOSITORY TO
THE DEPOSITORY OR ANOTHER NOMINEE OF THE DEPOSITORY OR BY THE DEPOSITORY OR A
NOMINEE OF THE DEPOSITORY TO A SUCCESSOR OF THE DEPOSITORY OR A NOMINEE OF SUCH
SUCCESSOR DEPOSITORY.
In addition, if indicated on the face hereof that this Note is a Global
Security, unless this Note is presented by an authorized representative of The
Depository Trust Company (55 Water Street, New York, New York) to the issuer or
its agents for registration of transfer, exchange or payment, and any
certificate issued is registered in the name of Cede & Co. or such other name
as requested by an authorized representative of The Depository Trust Company
and any payment is made to Cede & Co., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF
FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL since the registered
owner hereof, Cede & Co., has an interest herein.
REGISTERED REGISTERED
NUMBER: PRINCIPAL AMOUNT: $
CUSIP:
NORWEST FINANCIAL, INC.
SENIOR SUBORDINATED MEDIUM-TERM NOTE, SERIES B
IF APPLICABLE, THE "TOTAL AMOUNT OF OID," "YIELD TO MATURITY" AND "INITIAL
ACCRUAL PERIOD OID" (COMPUTED UNDER THE DESIGNATED METHOD) BELOW WILL BE
COMPLETED SOLELY FOR THE PURPOSES OF APPLYING THE FEDERAL INCOME TAX ORIGINAL
ISSUE DISCOUNT ("OID") RULES.
Floating Rate Note / / or % Fixed Rate Note / /
Original Issue Date:
Interest Accrual Date:
Maturity Date:
Issue Price:
Redemption Date(s):
Redemption Price(s):
Other Provisions:
Repayment Date(s):
Repayment Price(s):
Interest Payment Period:
Interest Payment Dates:
Total Amount of OID:
<PAGE> 2
Yield to Maturity:
Initial Accrual Period OID:
Method Used to Determine
Yield to Maturity and Initial
Accrual Period OID:
Original Issue Discount Global Security:
Note:
/ / Yes / / No
/ / Yes / / No
(Only applicable if this is a Floating Rate Note):
Initial Interest Rate:
Index Maturity:
Base Rate:
[Designated CMT Telerate Page:]
Interest Reset Period:
Interest Reset Dates:
Spread (plus or minus):
Spread Multiplier:
Maximum Interest Rate:
Minimum Interest Rate:
REGISTERED OWNER:
PRINCIPAL AMOUNT: $
NORWEST FINANCIAL, INC., a corporation duly organized and existing
under the laws of the State of Iowa (the "Company"), for value received, hereby
promises to pay to the Registered Owner identified above (the "Registered
Owner"), or registered assigns, the "Principal Amount," as set forth above, on
the "Maturity Date," as set forth above, and to pay interest thereon as
described herein.
The principal of (and premium, if any) and interest on this Note are
payable by the Company as specified above.
REFERENCE IS HEREBY MADE TO THE FURTHER PROVISIONS OF THIS NOTE SET
FORTH IN FULL BELOW, WHICH FURTHER PROVISIONS SHALL FOR ALL PURPOSES HAVE THE
SAME EFFECT AS IF SET FORTH IN FULL AT THIS PLACE.
Unless the certificate of authentication hereon has been manually
executed by or on behalf of the Trustee under the Indenture, this Note shall
not be entitled to any benefit under the Indenture or be valid or obligatory
for any purpose.
2
<PAGE> 3
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated:
NORWEST FINANCIAL, INC.
By:___________________________
Attest and Countersign:
[Corporate Seal] ______________________________
TRUSTEE'S CERTIFICATE OF
AUTHENTICATION
This is one of the Securities, of
the series designated herein,
issued under the within-
mentioned Indenture
HARRIS TRUST AND SAVINGS BANK,
as Trustee
By:___________________________
Authorized Officer
3
<PAGE> 4
1. This Note is one of a duly authorized issue of debt securities
of the Company (herein called the "Securities"), issued and to be issued in one
or more series under an Indenture, dated as of May 1, 1986 between the Company
and Harris Trust and Savings Bank, as Trustee (herein called the "Trustee",
which term includes any successor trustee under the Indenture) as amended by
the First Supplemental Indenture, dated as of February 15, 1991 (as
supplemented and amended, and as it may be supplemented and amended from time
to time, the "Indenture"), to which Indenture and all Indentures supplemental
thereto reference is hereby made for a statement of the respective rights,
limitations of rights, duties and immunities thereunder of the Company, the
Trustee and the Holders of the Securities and of the terms upon which the
Securities are, and are to be, authenticated and delivered. This Note is one of
a series designated as Medium-Term Notes, Series B of the Company (herein
called the "Notes"). The Notes are limited (except as otherwise provided in
the Indenture) to the aggregate principal amount established from time to time
by the Board of Directors of the Company. The Notes may be issued at various
times with different maturity dates and different principal redemption
provisions, may bear interest at different rates and may otherwise vary, all as
provided in the Indenture.
2. The indebtedness evidenced by this Note is, to the extent and in
the manner set forth in the Indenture, expressly subordinated and subject in
right of payment to the prior payment in full of all Senior Indebtedness (as
defined in the Indenture) of the Company. This Note is issued subject to such
provisions of the Indenture and each Holder of this Note, by accepting the
same, agrees to and shall be bound by such provisions and authorizes and
directs the Trustee on his behalf to take such action as may be necessary or
appropriate to acknowledge or effectuate such subordination as provided in the
Indenture and appoints the Trustee his attorney-in-fact for any and all such
purposes.
3. A. The "Record Date" pertaining to any Interest Payment Date
(as defined below) shall mean (a) with respect to Fixed Rate Notes, the first
day of the calendar month if such Interest Payment Date is the fifteenth day of
the calendar month, or the fifteenth day of the calendar month preceding such
Interest Payment Date if such Interest Payment Date is the first day of the
calendar month, in each case whether or not such date shall be a Business Day
(as defined below) and (b) with respect to Floating Rate Notes, the fifteenth
day preceding each Interest Payment Date, whether or not such date shall be a
Business Day. Interest which is payable, and is punctually paid or duly
provided for, on any Interest Payment Date shall be paid to the Person in
whose name the Note is registered at the close of business on the Record Date
next preceding such Interest Payment Date; provided, however, that interest
payable at Maturity or upon earlier redemption or repayment will be to the
Person to whom principal shall be payable; provided, further, that the first
payment of interest on any Note originally issued between a
4
<PAGE> 5
Record Date and an Interest Payment Date or on an Interest Payment Date will be
made on the Interest Payment Date following the next succeeding Record Date to
the Registered Owner on such next succeeding Record Date. "Business Day" means
any day, other than a Saturday or Sunday, that meets each of the following
applicable requirements: the day is (a) not a day on which banking
institutions are authorized or required by law, regulation or executive order
to be closed in The City of New York or Chicago, (b) with respect to LIBOR
Notes, a London Banking Day. "London Banking Day" means any day on which
dealings in deposits in U.S. Dollars are transacted in the London interbank
market. All percentages resulting from calculations will be rounded, if
necessary, to the nearest one hundred-thousandth of a percentage point, with
five one-millionths of a percentage point being rounded upwards, and all
currency or currency unit amounts used and resulting from such calculations on
the Notes will be rounded to the nearest one-hundredth of a unit (with .005 of
a unit being rounded upwards).
Interest payments in respect of the Notes will equal the amount of
interest accrued from and including the immediately preceding Interest Payment
Date in respect of which interest has been paid or duly made available for
payment (or from and including the Original Issue Date, if no interest has been
paid with respect to the applicable Note) to but excluding the related Interest
Payment Date or the Maturity Date (or date of redemption or repayment), as the
case may be.
B. If this is a "Fixed Rate Note" as indicated on the face hereof, the
Company promises to pay interest on the Principal Amount stated on the face
hereof at the rate per annum shown on the face hereof until such Principal
Amount is paid or made available for payment. The Company will pay interest
semi-annually each April 15 and October 15 or, if specified on the face hereof,
such other dates (the date on which interest will be payable, each an "Interest
Payment Date"), commencing with the Interest Payment Date immediately following
the Original Issue Date shown on the face hereof (the "Original Issue Date")
(subject to the last proviso in the second sentence of Section 3.A hereof) and
at Maturity or upon earlier redemption or repayment. Interest will accrue from
and including the most recent Interest Payment Date or, if no interest has been
paid or duly provided for, from and including the Original Issue Date, in each
case, to but excluding the Interest Payment Date. The amount of such interest
payable on any Interest Payment Date shall be computed on the basis of a
360-day year of twelve 30-day months. If any Interest Payment Date or the
Maturity Date (or date of redemption or repayment) of this Note falls on a day
that is not a Business Day, the required payment of principal, premium, if any,
and/or interest will be made on the next succeeding Business Day as if made on
the date such payment was due, and no interest will accrue on such payment for
the period from and after such Interest Payment Date or the Maturity Date
5
<PAGE> 6
(or date of redemption or repayment), as the case may be, to the date of such
payment on the next succeeding Business Day.
C. If this is a "Floating Rate Note" as indicated on the face hereof,
the Company promises to pay interest on the Principal Amount stated on the face
hereof at the rate per annum equal to the Initial Interest Rate shown on the
face hereof (the "Initial Interest Rate") until the first Interest Reset Date
shown on the face hereof (an "Interest Reset Date") following the Original
Issue Date specified on the face hereof and thereafter at a rate determined in
accordance with the provisions below under the heading "Determination of CD
Rate," "Determination of Commercial Paper Rate," "Determination of Federal
Funds Rate," "Determination of LIBOR," "Determination of Prime Rate",
"Determination of CMT Rate" or "Determination of Treasury Rate" depending upon
whether the Base Rate specified on the face hereof (the "Base Rate") is CD
Rate, Commercial Paper Rate, Federal Funds Rate, LIBOR, Prime Rate, CMT Rate or
Treasury Rate, respectively, until the Principal Amount stated on the face
hereof is paid or duly made available for payment. The Company will pay
interest monthly, quarterly, semi-annually or annually as specified on the face
hereof under "Interest Payment Period", commencing with the first Interest
Payment Date specified on the face hereof next succeeding the Original Issue
Date (subject to the last proviso in the second sentence of Section 3.A
hereof), and at Maturity or upon earlier redemption or repayment. Unless
otherwise provided on the face hereof, the dates on which interest will be
payable will be, in the case of Notes with a monthly Interest Payment Period,
the third Wednesday of each month; in the case of Notes with a quarterly
Interest Payment Period, the third Wednesday of March, June, September and
December; in the case of Notes with a semi-annual Interest Payment Period, the
third Wednesday of the two months specified on the face hereof; and in the case
of Notes with an annual Interest Payment Period, the third Wednesday of the
month specified on the face hereof; provided, however, that if an Interest
Payment Date would fall on a day that is not a Business Day, such Interest
Payment Date shall be postponed to the next day that is a Business Day, except
that in case the Base Rate is LIBOR, as specified on the face hereof, if such
date falls in the next calendar month, such Interest Payment Date shall be the
immediately preceding Business Day; provided, further, that if the Maturity
Date (or date of redemption or repayment) of this Note falls on a day that is
not a Business Day, the required payment of principal, premium, if any, and/or
interest will be made on the next succeeding Business Day as if made on the
date such payment was due, and no interest will accrue on such payment for the
period from and after the Maturity Date (or date of redemption or repayment),
as the case may be, to the date of such payment on the next succeeding Business
Day.
The interest payable on a Floating Rate Note on each Interest Payment
Date will include accrued interest from and including the Original Issue Date
or from and including the last
6
<PAGE> 7
date in respect of which interest has been paid, as the case may be, to but
excluding such Interest Payment Date, Maturity Date or date of redemption or
repayment, as the case may be. Such accrued interest will be calculated by
multiplying the principal amount hereof by an accrued interest factor. This
accrued interest factor shall be computed by adding the interest factors
calculated for each day in the period for which accrued interest is being
calculated. The interest factor (expressed as a decimal) for each such day
shall be computed by dividing the interest rate applicable to such day by 360
if the Base Rate is CD Rate, Commercial Paper Rate, Federal Funds Rate, LIBOR
or Prime Rate, as indicated on the face hereof, or by the actual number of days
in the year if the Base Rate is CMT Rate or Treasury Rate, as indicated on the
face hereof. The interest rate in effect on each day will be (a) if such day
is an Interest Reset Date, the interest rate with respect to the Interest
Determination Date (as defined below) pertaining to such Interest Reset Date or
(b) if such day is not an Interest Reset Date; the interest rate with respect
to the Interest Determination Date (as defined below) pertaining to the next
preceding Interest Reset Date; provided, however, that the interest rate in
effect from the Original Issue Date to the first Interest Reset Date will be
the Initial Interest Rate. Notwithstanding the foregoing, the interest rate
shall not be greater than the "Maximum Interest Rate", if any, or less than the
"Minimum Interest Rate", if any, shown on the face hereof. In addition, the
interest rate shall in no event be higher than the maximum rate, if any,
permitted by New York law, as the same may be modified by United States law of
general application. Commencing with the first Interest Reset Date specified
on the face hereof following the Original Issue Date and thereafter upon each
succeeding Interest Reset Date specified on the face hereof, the rate at which
interest on a Floating Rate Note is payable shall be adjusted as provided
herein; provided, however, that if any Interest Reset Date would otherwise be a
day that is not a Business Day, such Interest Reset Date shall be postponed to
the next day that is a Business Day, except that (i) if the Base Rate is LIBOR
and such Business Day is in the next succeeding calendar month, such Interest
Reset Date shall be the immediately preceding Business Day or (ii) if the Base
Rate is Treasury Rate and the Interest Reset Date falls on a date which is an
auction date, the Interest Reset Date shall be the following day that is a
Business Day.
The "Interest Determination Date" pertaining to an Interest Reset Date
will be, if the Base Rate is CD Rate, Commercial Paper Rate, Federal Funds
Rate, CMT Rate or Prime Rate, the second Business Day next preceding such
Interest Reset Date. The "Interest Determination Date" pertaining to an
Interest Reset Date will be, if the Base Rate is LIBOR, the second London
Banking Day next preceding such Interest Reset Date. The "Interest
Determination Date" pertaining to an Interest Reset Date will be, if the Base
Rate is Treasury Rate, the day of the week in which such Interest Reset Date
falls on which Treasury bills (as defined below) of the Index Maturity
7
<PAGE> 8
specified on the face hereof are auctioned (the "Index Maturity"). Treasury
bills are normally auctioned on Monday of each week, unless that day is a legal
holiday, in which case the auction is normally held on the following Tuesday,
except that such auction may be held on the preceding Friday. If, as a result
of a legal holiday, an auction is so held on the preceding Friday, such Friday
will be the Interest Determination Date pertaining to the Interest Reset Date
occurring in the next succeeding week.
Subject to applicable provisions of law and except as specified herein,
on each Interest Reset Date the rate of interest shall be the rate determined
in accordance with the provisions of the applicable heading below.
Determination of CD Rate. If the Base Rate is CD Rate, as indicated on
the face hereof, the interest rate shall equal (a) the rate on the applicable
Interest Determination Date for negotiable certificates of deposit having the
Index Maturity specified on the face hereof (1) as published by the Board of
Governors of the Federal Reserve System in "Statistical Release H.15(519),
Selected Interest Rates" or any successor publication of the Board of Governors
of the Federal Reserve System ("H.15(519)"), under the heading "CDs (Secondary
Market)" or (2) if such rate is not so published by 9:00 A.M., New York City
time, on the Calculation Date (as defined below) pertaining to such Interest
Determination Date, then as published by the Federal Reserve Bank of New York
in its daily statistical release "Composite 3:30 P.M. Quotations for U.S.
Government Securities" (the "Composite Quotations") under the heading
"Certificates of Deposit" or (b) if neither of such rates is published by 3:00
P.M., New York City time, on such Calculation Date, the arithmetic mean (as
calculated by the Calculation Agent (as defined below)) of the secondary market
offered rates as of 10:00 A.M., New York City time, on such Interest
Determination Date of three leading non-bank dealers in negotiable U.S. Dollar
certificates of deposit in The City of New York selected by the Calculation
Agent, for negotiable certificates of deposit of major United States money
center banks of the highest credit standing (in the market for negotiable
certificates of deposit) with a remaining maturity closest to the Index
Maturity (as specified on the face hereof) in a denomination of $5,000,000, in
each of the above cases adjusted by the addition or subtraction of the Spread,
if any, specified on the face hereof (the "Spread"), or by multiplication by
the Spread Multiplier, if any, specified on the face hereof (the "Spread
Multiplier"); provided, however, that if such dealers are not quoting as
mentioned above, the interest rate in effect hereon until the Interest Reset
Date next succeeding the Interest Reset Date to which such Interest
Determination Date relates shall be the same as the rate for the immediately
preceding Interest Reset Period (or, if there was no such Interest Reset
Period, the Initial Interest Rate).
8
<PAGE> 9
Determination of Commercial Paper Rate. If the Base Rate is Commercial
Paper Rate, as indicated on the face hereof, the interest rate shall equal (a)
the Money Market Yield (as defined herein) on the applicable Interest
Determination Date of the rate for commercial paper having the Index Maturity
specified on the face hereof (1) as published in H.15(519), under the heading
"Commercial Paper", or (2) if such yield is not so published by 9:00 A.M., New
York City time, on the Calculation Date pertaining to such Interest
Determination Date, then as published in the Composite Quotations under the
heading "Commercial Paper" or (b) if neither of such yields is published by
3:00 P.M., New York City time, on such Calculation Date, the Money Market Yield
of the arithmetic mean (as calculated by the Calculation Agent) of the offered
rates, as of 11:00 A.M., New York City time on such Interest Determination
Date, of three leading dealers of commercial paper in The City of New York,
selected by the Calculation Agent, for commercial paper of the Index Maturity
specified on the face hereof placed for an industrial issuer whose bond rating
is "AA", or the equivalent, from a nationally recognized rating agency, in each
of the above cases adjusted by the addition or subtraction of the Spread, if
any, specified on the face hereof, or by multiplication by the Spread
Multiplier, if any, specified on the face hereof; provided, however, that if
such dealers are not quoting as mentioned above, the interest rate in effect
hereon until the Interest Reset Date next succeeding the Interest Reset Date to
which such Interest Determination Date relates shall be the same as the rate
for the immediately preceding Interest Reset Period (or, if there was no such
Interest Reset Period, the Initial Interest Rate).
"Money Market Yield" shall be the yield calculated in accordance with
the following formula:
Money Market Yield = D x 360 x 100
_____________
360 - (D x M)
where "D" refers to the per annum rate for commercial paper quoted on a bank
discount basis and expressed as a decimal; and "M" refers to the actual number
of days in the interest period for which interest is being calculated.
Determination of Federal Funds Rate. If the Base Rate is Federal Funds
Rate, as indicated on the face hereof, the interest rate shall equal (a) the
rate on the applicable Interest Determination Date for Federal Funds (1) as
published in H.15(519), under the heading "Federal Funds (Effective)" or (2)
if such rate is not so published by 9:00 A.M., New York City time, on the
Calculation Date pertaining to such Interest Determination Date, then as
published in the Composite Quotations under the heading "Federal
Funds/Effective Rate" or (b) if neither of such rates is published by 3:00
P.M., New York City time, on such Calculation Date, the arithmetic mean (as
calculated by the Calculation Agent) of the rates for the last
9
<PAGE> 10
transaction in overnight Federal Funds arranged by three leading brokers of
Federal Funds transactions in New York City, selected by the Calculation Agent,
as of 9:00 A.M., New York City time on such Interest Determination Date, in
each of the above cases adjusted by the addition or subtraction of the Spread,
if any, specified on the face hereof, or by multiplication by the Spread
Multiplier, if any, specified on the face hereof; provided, however, that if
such brokers are not quoting as mentioned above, the interest rate in effect
hereon until the Interest Reset Date next succeeding the Interest Reset Date to
which such Interest Determination Date relates shall be the same as the rate
for the immediately preceding Interest Reset Period (or, if there was no such
Interest Reset Period, the Initial Interest Rate).
Determination of LIBOR. If the Base Rate is LIBOR, as indicated on the
face hereof, the interest rate shall equal LIBOR, adjusted by the addition or
subtraction of the Spread, if any, specified on the face hereof, or by
multiplication by the Spread Multiplier, if any, specified on the face hereof.
"LIBOR" will be determined by the Calculation Agent in accordance with
the following provisions:
(i) LIBOR for any Interest Determination Date
will be determined as follows: (A) if LIBOR is specified on the face
hereof to be "LIBOR-Reuters", LIBOR will be determined on the basis of
the offered rates for deposits in U.S. dollars having the Index
Maturity specified on the face hereof, commencing on the second London
Banking Day immediately following such Interest Determination Date,
which appear on the Reuters Screen LIBO Page as of 11:00 a.m., London
time, on such Interest Determination Date (if at least two such offered
rates appear on the Reuters Screen LIBO Page, the rate in respect of
such Interest Determination Date will be the arithmetic mean of such
offered rates as determined by the Calculation Agent), or (B) if LIBOR
is specified on the face hereof to be "LIBOR-Telerate" or "LIBOR",
LIBOR for such Interest Determination Date will be the rate for
deposits in U.S. dollars having the Index Maturity specified on the
face hereof which appears on the Telerate Page 3750 or such other page
as may replace Telerate Page 3750 on that service for the purpose of
displaying London interbank offered rates of major banks (the "Telerate
Page") as of 11:00 A.M., London time, on such Interest Determination
Date. If fewer than two offered rates appear, in the case of
alternative (A) above, or if such rate does not appear on the Telerate
Page, in the case of alternative (B) above, the rate for such Interest
Determination Date will be determined as if the rate had been specified
as described in (ii) below.
10
<PAGE> 11
(ii) With respect to an Interest Determination Date on
which fewer than two offered rates appear on the Reuters Screen LIBO
Page or if the rate for deposits does not appear on the Telerate Page
as applicable and as specified in (i) above, LIBOR will be determined
on the basis of the rates at which deposits in U.S. dollars are offered
by four major banks in the London interbank market selected by the
Calculation Agent at approximately 11:00 a.m., London time, on such
Interest Determination Date to prime banks in the London interbank
market having the Index Maturity specified on the face hereof
commencing on the second London Banking Day immediately following such
Interest Determination Date and in a principal amount equal to an
amount of not less than U.S. $1,000,000 that is representative for a
single transaction in such market at such time. The Calculation Agent
will request the principal London office of each of such banks to
provide a quotation of its rate. If at least two such quotations are
provided, LIBOR in respect of such Interest Determination Date will be
the arithmetic mean of such quotations. If fewer than two quotations
are provided, LIBOR in respect of such Interest Determination Date will
be the arithmetic mean of the rates quoted by three major banks in The
City of New York selected by the Calculation Agent at approximately
11:00 a.m., New York time, on such Interest Determination Date for
loans in U.S. dollars to leading European banks, having the Index
Maturity specified on the face hereof commencing on the second London
Banking Day immediately following such Interest Determination Date and
in a principal amount equal to an amount of not less than U.S.
$1,000,000 that is representative for a single transaction in such
market at such time; provided, however, that if the banks selected as
aforesaid by the Calculation Agent are not quoting as mentioned in this
sentence, LIBOR for the applicable period will be the same as LIBOR for
the immediately preceding Interest Reset Period (or, if there was no
such Interest Reset Period, the Initial Interest Rate).
"Reuters Screen LIBO Page" means the display designated as page "LIBO"
on the Reuters Monitor Money Rates Service (or such other page as may replace
the LIBO page on that service for the purpose of displaying London interbank
offered rates of major banks).
Determination of Treasury Rate. If the Base Rate is Treasury Rate, as
indicated on the face hereof, the interest rate shall equal the rate for the
auction held on the applicable Interest Determination Date of direct
obligations of the United States ("Treasury bills") having the Index Maturity
shown on the face hereof as published in H.15(519) under the heading "U.S.
Government Securities -- Treasury bills -- auction average
11
<PAGE> 12
(investment)" or, if not so published by 9:00 A.M., New York City time, on the
Calculation Date pertaining to such Interest Determination Date, the auction
average rate (expressed as a bond equivalent on the basis of a year of 365 or
366 days, as applicable, and applied on a daily basis) as otherwise announced
by the United States Department of the Treasury, in either case, adjusted by
the addition or subtraction of the Spread, if any, specified on the face
hereof, or by multiplication by the Spread Multiplier, if any, specified on the
face hereof. In the event that the results of the auction of Treasury bills
having the Index Maturity shown on the face hereof are not published or
reported as provided above by 3:00 P.M., New York City time, on such
Calculation Date or if no such auction is held in a particular week, then the
rate of interest hereon shall be calculated by the Calculation Agent and shall
be a yield to Maturity (expressed as a bond equivalent on the basis of a year
of 365 or 366 days, as applicable, and applied on a daily basis) of the
arithmetic mean of the secondary market bid rates, as of approximately 3:30
P.M., New York City time on such Interest Determination Date, of three leading
primary United States government securities dealers, selected by the
Calculation Agent, for the issue of Treasury bills with a remaining maturity
closest to the Index Maturity shown on the face hereof, adjusted by the
addition or subtraction of the Spread, if any, specified on the face hereof, or
by multiplication by the Spread Multiplier, if any, specified on the face
hereof; provided, however, that if the dealers selected as aforesaid by the
Calculation Agent are not quoting as mentioned in this sentence, the interest
rate in effect hereon until the Interest Reset Date next succeeding the
Interest Reset Date to which such Interest Determination Date relates shall be
the same as the rate for the immediately preceding Interest Reset Period (or,
if there was no such Interest Reset Period, the Initial Interest Rate).
Determination of CMT Rate. If the Base Rate is CMT Rate, as indicated
on the face hereof, the interest rate shall equal the CMT Rate adjusted by the
addition or subtraction of the Spread, if any, specified on the face hereof, or
by multiplication by the Spread Multiplier, if any, specified on the face
hereof.
"CMT Rate" shall mean, with respect to any Interest Determination Date,
the rate displayed on the Designated CMT Telerate Page under the caption "
...Treasury Constant Maturities...Federal Reserve Board Release H.15...Mondays
Approximately 3:45 P.M.," under the column for the Index Maturity specified on
the face hereof for (i) if the Designated CMT Telerate Page is 7055, the rate
on such Interest Determination Date and (ii) if the Designated CMT Telerate
Page is 7052, the week or the month, as applicable, ended immediately preceding
the week in which the related Interest Determination Date occurs. If such rate
is no longer displayed on the relevant page, or if not displayed by 3:00 P.M.,
New York City time, on the related Calculation Date, then the CMT Rate for such
Interest
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<PAGE> 13
Determination Date will be such treasury constant maturity rate for the Index
Maturity specified on the face hereof (or other United States Treasury rate for
such Index Maturity) for the Interest Determination Date with respect to such
Interest Reset Date as may then be published by either the Board of Governors
of the Federal Reserve System or the United States Department of the Treasury
that the Calculation Agent determines to be comparable to the rate formerly
displayed on the Designated CMT Telerate Page and published in the relevant
H.15(519). If such information is not provided by 3:00 P.M., New York City
Time, on the related Calculation Date, then the CMT Rate for the Interest
Determination will be calculated by the Calculation Agent and will be a yield
to maturity, based on the arithmetic mean of the secondary market closing offer
side prices as of approximately 3:30 P.M., New York City time, on the Interest
Determination Date reported, according to their written records, by three
leading primary United States government securities dealers (each, a "Reference
Dealer") in The City of New York (which may include the Agents or their
respective affiliates) selected by the Calculation Agent (from five such
Reference Dealers selected by the Calculation Agent and eliminating the highest
quotation (or, in the event of equality, one of the highest) and the lowest
quotation (or, in the event of equality, one of the lowest)), for the most
recently issued direct noncallable fixed rate obligations of the United States
("Treasury Notes") with an original maturity of approximately the Index
Maturity specified on the face hereof and a remaining term to maturity of not
less than such Index Maturity minus one year. If the Calculation Agent cannot
obtain three such Treasury Note quotations, the CMT Rate for such Interest
Determination Date will be calculated by the Calculation Agent and will be a
yield to maturity based on the arithmetic mean of the secondary market offer
side prices as of approximately 3:30 P.M., New York City time, on the Interest
Determination Date of three Reference Dealers in The City of New York (from
five such Reference Dealers selected by the Calculation Agent and eliminating
the highest quotation (or, in the event of equality, one of the highest) and
the lowest quotation (or, in the event of equality, one of the lowest)), for
Treasury Notes with an original maturity of the Number of years that is the
next highest to the Index Maturity specified on the face hereof and a remaining
term to maturity closest to such Index Maturity and in an amount of at least
$100,000,000. If three or four (and not five) of such Reference Dealers are
quoting as described above, then the CMT Rate will be based on the arithmetic
mean of the offer prices obtained and neither the highest nor the lowest of
such quotes will be eliminated; provided, however, that if fewer than three
Reference Dealers selected by the Calculation Agent are quoting as described
herein, the CMT Rate will be the CMT Rate in effect on such Interest
Determination Date. If two Treasury Notes with an original maturity as
described in the third preceding sentence have remaining terms to maturity
equally close to such Index Maturity, the quotes for the Treasury Note with the
shorter remaining term to maturity will be used.
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<PAGE> 14
"Designated CMT Telerate Page" means the display on the Dow Jones
Telerate Service on the page designated on the face hereof (or any other page
as may replace such page on that service, for the purpose of displaying
Treasury Constant Maturities as reported in H.15(519)). If no such page is
designated, the Designated CMT Telerate Page shall be 7052, for the most recent
week.
Determination of Prime Rate. If the Base Rate is Prime Rate, as
indicated on the face hereof, the interest rate shall equal (a) the arithmetic
mean of the prime rates quoted on the basis of the actual number of days in the
year divided by a 360 day year as of the close of business on such Interest
Determination Date furnished in The City of New York by any three money center
banks selected by the Calculation Agent, or (b) if fewer than two quotations
are provided, the Prime Rate shall be determined on the basis of the rate or
rates furnished in The City of New York by any substitute bank or trust company
organized and doing business under the laws of the United States or any State
thereof, having total equity capital of at least $500,000,000 and being subject
to supervision or examination by Federal or State authority, selected by the
Calculation Agent to provide such rate or rates, in each of the above cases
adjusted by the addition or subtraction of the Spread, if any, specified on the
face hereof, or by multiplication by the Spread Multiplier, if any, specified
on the face hereof; provided, however, that if the banks or trust companies
selected as aforesaid by the Calculation Agent are not quoting as mentioned in
this sentence, the interest rate in effect hereon until the Interest Reset Date
next succeeding the Interest Reset Date to which such Interest Determination
Date relates shall be the same as the rate for the immediately preceding
Interest Reset Period (or, if there was no such Interest Reset Period, the
Initial Interest Rate).
The "Calculation Date" pertaining to any Interest Determination Date
shall be the earlier of (i) the tenth calendar day after such Interest
Determination Date or, if any such day is not a Business Day, the next
succeeding Business Day and (ii) the Business Day immediately preceding the
applicable Interest Payment Date or the Maturity Date (or date of redemption or
repayment) as the case may be. The "Calculation Agent" shall calculate the
interest rate hereon in accordance with the foregoing and will confirm in
writing such calculation to the Trustee and any Paying Agent immediately after
each determination. Neither the Trustee nor any Paying Agent shall be
responsible for any such calculation. At the request of the Holder hereof, the
Calculation Agent will provide the interest rate hereon then in effect and, if
determined, the interest rate which will become effective as of the next
Interest Reset Date.
4. Payments of interest, principal and premium, if any on this
Note, (other than at Maturity) will be payable at the Corporate Trust Office of
the Trustee or at the office or agency
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<PAGE> 15
of the Company maintained for such purposes in the Borough of Manhattan, The
City of New York; provided, however, that at the option of the Company, payment
of interest may be made by check mailed to the Holder at the address appearing
on the Securities Register on the applicable Record Date. Notwithstanding the
foregoing, the Company may at its option elect to make payments by wire
transfer of immediately available funds, but only if appropriate payment
instructions have been received in writing by the Trustee not less than fifteen
calendar days prior to the applicable Interest Payment Date. Unless indicated
on the face hereof that this Note is a Global Security, the principal hereof
and any premium and interest hereon payable at Maturity will be paid in
immediately available funds upon surrender of this Note at the office or agency
of the Company maintained for that purpose in the Borough of Manhattan, The
City of New York. If indicated on the face hereof that this Note is a Global
Security, the principal hereof and any premium and interest due on any Interest
Payment Date or at Maturity or redemption will be made available to the Trustee
on such date. As soon as possible thereafter, the Trustee will make such
payments to the Depository (as defined below) in accordance with existing
arrangements between the Trustee and the Depository.
5. If specified on the face hereof, this Note may be redeemed, as a
whole or from time to time in part, at the option of the Company, on not less
than 30 nor more than 90 days prior notice given as provided in the Indenture,
on any Redemption Date(s) and at the related Redemption Price(s) set forth on
the face hereof. If less than all the Outstanding Notes of like tenor and
terms are to be redeemed, the particular Notes to be redeemed shall be selected
by the Trustee by such method as the Trustee shall deem fair and appropriate;
provided, however, that such selection shall be of principal amounts equal to
the minimum authorized denomination for such Notes or any integral multiple
thereof. The notice of such redemption shall specify which Notes are to be
redeemed. In the event of redemption of this Note in part only, a new Note or
Notes of this series of like tenor and terms for the unredeemed portion hereof
will be issued in the name of the Holder hereof upon the cancellation hereof.
The Notes of this series are not subject to any sinking fund.
6. If specified on the face hereof, this Note will be subject to
repayment at the option of the Holder hereof on the Repayment Date(s) and at
the Repayment Price(s) indicated on the face hereof. If no such Repayment Date
is set forth on the face hereof, this Note may not be so repaid at the option
of the Holder hereof prior to the Maturity Date. On each Repayment Date, if
any, this Note shall be repayable in whole or in part at the option of the
Holder hereof at the applicable Repayment Price set forth on the face hereof,
together with interest thereon to the date of repayment. For this Note to be
repaid in whole or in part at the option of the Holder hereof, the Trustee must
receive at the Corporate Trust Office of the Trustee in Chicago, or at the
office or agency of the Trustee maintained for such purposes
15
<PAGE> 16
in the Borough of Manhattan, The City of New York, at least 15 days, but not
more than 30 days, prior to the specified Repayment Date (i) the Note with the
form entitled "Option to Elect Repayment" below duly completed or (ii) a
telegram, telex, facsimile transmission or letter from a member of a national
securities exchange or the National Association of Securities Dealers, Inc. or
a commercial bank or a trust company in the United States of America setting
forth the name of the Holder of the Note, the principal amount of the Note, the
certificate number of the Note or a description of the Note's tenor and terms,
the principal amount of the Note to be repaid (which shall not be less than the
minimum authorized denomination of this Note or an integral multiple thereof),
a statement that the option to elect repayment is being exercised thereby and a
guarantee that the Note to be repaid with the form entitled "Option to Elect
Repayment" on the Note duly completed will be received by the Trustee not later
than five Business Days after the date of such telegram, telex, facsimile
transmission or letter and such Note and form duly completed are received by
the Trustee by such fifth Business Day. Exercise of such repayment option
shall be irrevocable. Such option may be exercised by the Holder for less than
the entire principal amount provided that the principal amount remaining
outstanding after repayment, if any, is an authorized denomination. All
questions as to the validity, eligibility (including time of receipt) and
acceptance of any Note for repayment will be determined by the Company whose
determination will be final and binding.
7. If an Event of Default with respect to the Notes shall occur and
be continuing, the principal of all of the Notes may be declared due and
payable in the manner and with the effect provided in the Indenture. If this
Note is an Original Issue Discount Note (as specified on the face hereof) and
the principal hereof is declared to be due and payable immediately pursuant to
this Section or otherwise, the amount of principal due and payable with respect
to this Note shall be limited to the sum of the principal amount of this Note
multiplied by the Issue Price (expressed as a percentage of the aggregate
principal amount), plus the original issue discount accrued from the date of
issue to the date of declaration, which accrual shall be calculated using the
"interest method" (computed in accordance with generally accepted accounting
principles) in effect on the date of declaration.
8. The Indenture permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the rights and
obligations of the Company and the rights of the Holders of the Securities
under the Indenture at any time by the Company with the consent of the Holders
of more than fifty percent in aggregate principal amount of the Securities at
the time Outstanding, of each series to be affected thereby. The Indenture
also contains provisions permitting the Holders of specified percentages in
aggregate principal amount of the Securities of any series at the time
Outstanding, on behalf of
16
<PAGE> 17
the Holders of all the Securities of such series, to waive compliance by the
Company with certain provisions of the Indenture and certain past defaults
under the Indenture and their consequences with respect to such series. Any
such consent or waiver by the Holder of this Note shall be conclusive and
binding upon such Holder and upon all future Holders of this Note and of any
Note issued upon the transfer hereof or in exchange herefor or in lieu hereof
whether or not notation of such consent or waiver is made upon this Note.
9. No reference herein to the Indenture and no provision of this
Note or of the Indenture shall alter or impair the obligation of the Company,
which is absolute and unconditional, to pay the principal of and interest on
this Note at the times, place and rate, and in the coin or currency, herein and
in the Indenture prescribed.
10. The Notes are issuable only in registered form without coupons.
The authorized denominations of Notes denominated in U.S. Dollars will be U.S.
$1,000 and/or any amount in excess thereof which is an integral multiple of
U.S. $1,000.
11. If not indicated on the face hereof that this Note is a Global
Security, as provided in the Indenture and subject to certain limitations
therein set forth and set forth on the face hereof, this Note is transferable
on the Securities Register of the Company, upon surrender of this Note for
registration of transfer at the office or agency of the Company to be
maintained for that purpose in the Borough of Manhattan, The City of New York,
or at any other office or agency of the Company maintained for that purpose,
duly endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Company and the Securities Registrar duly executed by the
Holder hereof or his attorney duly authorized in writing, and thereupon one or
more new Notes, of authorized denominations and for the same aggregate
principal amount, will be issued to the designated transferee or transferees.
As provided in the Indenture and subject to certain limitations therein set
forth, Notes are exchangeable for a like aggregate principal amount of Notes of
a like tenor and of a different authorized denomination, as requested by the
Holder surrendering the same. No service charge shall be made for any such
transfer or exchange, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge payable in connection with
registration of such transfer or exchange, other than certain exchanges not
involving any transfer. The Company, the Trustee and any agent of the Company
or the Trustee may treat the Person in whose name this Note is registered as
the owner hereof for the purpose of receiving payment as herein provided and
for all other purposes, whether or not this Note be overdue, and neither the
Company, the Trustee nor any such agent shall be affected by notice to the
contrary.
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<PAGE> 18
12. "Global Security" and "Global Securities" means a Security or
Securities evidencing all or a part of a series of Securities, issued to the
Depository (as hereinafter defined) for such Series or its nominee, and
registered in the name of such Depository or its nominee. "Depository" means,
with respect to the Securities of any series issuable or issued in whole or in
part in the form of one or more Global Securities, the person designated as the
Depository by the Company.
13. If indicated on the face hereof that this Note is a Global
Security, no holder of any beneficial interest in this Note held on its behalf
by a Depository or a nominee of such Depository shall have any rights under the
Indenture with respect to such Global Security, and such Depository or nominee
may be treated by the Company, the Trustee, and any agent of the Company or the
Trustee as the owner of such Global Security for all purposes whatsoever.
Notwithstanding the foregoing, nothing herein shall impair, as between a
Depository and such holders of beneficial interests, the operation of customary
practices governing the exercise of the rights of the Depository as Holder of
any Security.
14. If indicated on the face hereof that this Note is a Global
Security, it is exchangeable, in whole but not in part, for Notes registered in
the names of Persons other than the Depository or its nominee or in the name of
a successor to the Depository or a nominee of such successor Depository only if
(i) the Depository notifies the Company that it is unwilling or unable to
continue as Depository for this Note or if at any time such Depository ceases
to be a clearing agency registered under the Securities Exchange Act of 1934,
as amended, and, in either case, a successor depository is not appointed by the
Company within 90 days, (ii) the Company in its discretion at any time
determines not to have all of the Notes of this series represented by one or
more Global Security or Securities and notifies the Trustee thereof, or (iii)
an Event of Default has occurred and is continuing with respect to the Notes of
this series. If this Note is exchangeable pursuant to the preceding sentence,
it shall be exchangeable for Notes issuable in authorized denominations and
registered in such names as the Depository holding this Note shall direct.
Subject to the foregoing, if this Note is a Global Security it is not
exchangeable, except for a Note or Notes of the same aggregate denominations to
be registered in the name of such Depository or its nominee or in the name of a
successor to the Depository or a nominee of such successor depository.
15. No recourse shall be had for the payment of the principal of or
interest on this Note, or for any claim based hereon, or otherwise in respect
hereof, or based on or in respect of the Indenture or any indenture
supplemental thereto, against any incorporator, stockholder, officer or
director, as such, past, present or future, of the Company or any successor
company, whether by virtue of any constitution, statute or rule of law, or
18
<PAGE> 19
by the enforcement of any assessment or penalty or otherwise, all such
liability being, by the acceptance hereof and as part of the consideration for
the issue hereof, expressly waived and released.
16. Unless otherwise defined herein, all terms used in this Note
which are defined in the Indenture shall have the meanings assigned to them in
the Indenture.
17. This Note, including without limitation the obligation of the
Company contained herein to pay the principal of and interest on this Note in
accordance with the terms hereof and of the Indenture, shall be construed in
accordance with and governed by the laws of the State of New York.
19
<PAGE> 20
OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably requests and instructs the Company
to repay this Note (or portion hereof specified below) pursuant to its terms at
a price equal to the applicable Repayment Price thereof together with accrued
and unpaid interest to the Repayment Date, to the undersigned at
_______________________________________________________________________________
(PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS OF THE UNDERSIGNED)
For this Note to be repaid, the Company must receive this Note, with
this "Option to Elect Repayment" form duly completed, at the office or agency
of the Company set forth on the face hereof, at least 15 days but not more than
30 days, prior to the Repayment Date(s) (as set forth on the face hereof).
If less than the entire principal amount of this Note is to be repaid,
specify the portion thereof which the Holder elects to have repaid (which shall
not be less than the minimum authorized denominations of this Note), specify
the portion thereof which the Holder elects to have repaid ; and
specify the denomination or denominations (which shall be in authorized
denominations) of the Notes to be issued to the Holder for the portion of this
Note not being repaid (in the absence of any such specification, one such Note
will be issued for the portion not being repaid): .
Date: _______________________ _______________________________________
NOTICE: The signature on this Option
to Elect Repayment must correspond with
the name as written upon the face of
this Note in every particular without
alteration or enlargement.
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face
of this certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right of survivorship and not as tenants
in common
UNIF GIFT MIN ACT - ______________ Custodian ______________
(Cust) (Minor)
under Uniform Gifts to Minors Act
______________
(State)
20
<PAGE> 21
Additional abbreviations may also be used though not in the above list.
ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sells, assigns and transfers
unto ________________________ [PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE] (PLEASE PRINT OR TYPEWRITE NAME AND
ADDRESS OF TRANSFEREE) the within Note, and all rights thereunder, hereby
irrevocably constituting and appointing __________________________ Attorney to
transfer said Note on the books of the Company, with full power of substitution
in the premises.
Date ____________________________ _____________________________________
NOTICE: The signature to this assignment must be guaranteed by a
commercial bank or trust company in the continental United States or
by a firm or corporation having membership on any national securities
exchange or in the National Association of Securities Dealers, Inc.,
and must correspond with the name as written upon the face of the
within instrument in every particular without alteration or
enlargement or any change whatever.
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<PAGE> 1
EXHIBIT 8
November 8, 1994
Norwest Financial, Inc.
206 Eighth Street
Des Moines, Iowa 50309
Re: Norwest Financial, Inc.
Registration No. 33-52157
Ladies and Gentlemen:
At your request, we have examined the Registration Statement on Form
S-3, Registration No. 33-52157 (the "Registration Statement"), in the form in
which it was declared effective by the Securities and Exchange Commission, the
Prospectus dated March 1, 1994 contained in the Registration Statement (the
"Prospectus"), the Prospectus Supplement dated November 8, 1994 supplementing
the Prospectus (the "Prospectus Supplement"), and the Current Report on Form
8-K, dated November 8, 1998 (the "Form 8-K") of Norwest Financial, Inc., an
Iowa corporation relating to the sale from time to time of up to $500,000,000
aggregate principal amount of the Company's Medium-Term Notes, Series B.
We have examined instruments, documents, and records which we deemed
relevant and necessary for the basis of our opinion hereinafter expressed.
Based on such examination, and consideration of applicable laws, we hereby
confirm our opinion set forth under the heading "Certain United States Federal
Income Tax Consequences" in the Prospectus Supplement.
We express no opinion as to matters of law in jurisdictions other than
the State of New York and the federal law of the United States.
<PAGE> 2
We hereby consent to the filing of this opinion as an exhibit to the
Form 8-K and its incorporation by reference in the Registration Statement and
to the use of our name wherever it appears in the Registration Statement, the
Prospectus, the Prospectus Supplement, and in any amendment or supplement
thereto. In giving such consent, we do not consider that we are "experts"
within the meaning of such term as used in the Act or the rules and regulations
of the Securities and Exchange Commission issued thereunder with respect to any
part of the Registration Statement, including this opinion as an exhibit or
otherwise.
Very truly yours,
/s/ ORRICK, HERRINGTON & SUTCLIFFE
<PAGE> 1
EXHIBIT 23.2
I hereby consent to the reference to me under the heading "Legal Opinions" in
the Prospectus Supplement dated November 8, 1994, relating to the offering from
time to time by Norwest Financial, Inc. of its Medium Term Notes, Series B, in
an aggregate initial offering price of up to $500,000,000, which Prospectus
Supplement supplements the Prospectus dated March 1, 1994 and forming a part of
Norwest Financial, Inc.'s Registration Statement on Form S-3 (Registration No.
33-52157).
/s/ Steve R. Wagner
-------------------------------------
Steve R. Wagner
